MOORE v. BELLS NURSING HOME INC LLC (2024)

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

This is an action for retaliation and interference under the Family Medical Leave Act (“FMLA”). Plaintiff Renita Moore is a former employee of Defendant Bells Nursing Home, Inc. d/b/a Bells Nursing & Rehabilitation Center. Plaintiff took FMLA leave in 2020, shortly after she adopted an infant. After returning from leave, Plaintiff was discharged from her job at the end of the work week. Plaintiff alleges that Defendant's decision to dismiss her violated her FMLA rights. A jury trial is currently set for March 25, 2024. Plaintiff has now filed a Motion for Summary Judgment (ECF No. 32), and Defendant has filed its own Motion for Partial Summary Judgment (ECF No. 31). The parties have fully briefed the issues, and both Motions are now ripe for determination. For the reasons set forth below, Plaintiff's Motion is DENIED, and Defendants' Motion is GRANTED in part, DENIED in part.

BACKGROUND

To decide the parties' Rule 56 Motions, the Court must consider whether any genuine issue of material fact exists that might preclude judgment as a matter of law. A fact is material if the fact “might affect the outcome of the lawsuit under the governing substantive law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A party moving for summary judgment and asserting that a material fact is not genuinely in dispute must cite particular parts of the record and show that the evidence fails to establish a genuine dispute or that the adverse party has failed to produce admissible evidence to support a factual contention. Fed. R. Civ. P. 56(c)(1). Local Rule 56.1 governs motion practice for summary judgment motions. Local Rule 56.1(a) requires a party seeking summary judgment to prepare a statement of facts “to assist the Court in ascertaining whether there are any material facts in dispute.” Local R. 56.1(a). In this case, both Plaintiff and Defendants seek judgment as a matter of law, and both sides have filed their own statement of undisputed facts as required by Local Rule 56.1(a).

Before analyzing the parties' evidentiary submissions, the Court considers Defendants objection as to the form of several statements found in Plaintiff's statement of undisputed facts. Defendants argue that the statements contain compound or multiple assertions of fact and therefore do not comply with the Local Rules. Local Rule 56.1(a) requires a moving party to set out “each fact” in a “separate, numbered paragraph” along with an appropriate citation to the record. The Court tends to agree that many of Plaintiff's asserted factual statements include more than one fact and technically do not comply with Local Rule 56.1(a)'s requirement to state (and number) each fact separately. Nevertheless, the Court does not find that Plaintiff's approach to briefing the evidence in this manner has deprived Defendants of a full and fair opportunity to address Plaintiff's position on the proof or prevented the Court from making its determination about which facts are genuinely not in dispute for purposes of Federal Rule of Civil Procedure 56. The Court will therefore overrule Defendants' objection on this point. The Court notes some additional objections raised by Defendants in its discussion of the proof below.

Based on the parties' submissions, the Court finds that the following facts are material and undisputed for purposes of summary judgment, unless otherwise noted. Defendant Bells Nursing Home, Inc. hired Plaintiff Renita Moore as a staffing coordinator on June 26, 2019. Pl.'s Statement of Undisputed Fact ¶ 1 (ECF No. 32-2); Defs.' Statement of Undisputed Fact ¶ 1 (ECF No. 31-2). As a staffing coordinator, Plaintiff was responsible for hiring, training, and onboarding nurses and certified nursing aides (“CNAs”) at the nursing home, scheduling nursing assistants, and maintaining staffing. Pl.'s Statement of Undisputed Fact ¶ 1; Defs.' Statement of Undisputed Fact ¶¶ 3-5. Plaintiff initially reported to the director of nursing at the nursing home. Pl.'s Statement of Undisputed Fact ¶ 2. Near the end of her tenure in October and November 2020, Plaintiff reported to the assistant director of nursing, Jennifer Coble. Id. Throughout Plaintiff's employment at the nursing home, Plaintiff received only positive performance reviews. Id. ¶ 5. In her 2020 annual performance review, Plaintiff received the highest rating of “exceptional” in every category. Id. Plaintiff also received a pay raise for “supervisory duties, go[ing] above & beyond, very diligent [with] work duties, very thorough, great rapport [with] CNAs, demanding position.” Id. Plaintiff never received a write-up or verbal reprimand over a disciplinary issue at any point during her tenure, including for scheduling issues, until her termination on November 13, 2020. Id. ¶ 6.

In September 2020, Plaintiff applied for FMLA-protected leave to care for her adopted baby. Id. ¶ 7. Defendant Bells Nursing Home is a covered employer for purposes of the FMLA. Id. ¶ 8. Defendant Harber-Laman LLC does not own Bells Nursing Home, Inc. Defs.' Statement of Undisputed Fact ¶ 37. Harber-Laman provides accounting and management consulting services to the nursing home as well as other companies. Id. ¶ 36. Harber-Laman was not Plaintiff's employer and had no role in managing the day-to-day operations of Bells Nursing Home, including personnel matters. Id. ¶¶ 37, 40, 45. Plaintiff worked at least 1,250 hours in the 12-month period immediately preceding her leave in October 2020 and was therefore an “eligible employee” under the FMLA. Pl.'s Statement of Undisputed Fact ¶ 8. The FMLA entitled her to up to 12 weeks of FMLA-protected leave. Id.

At the time Plaintiff requested FMLA leave, Allison Smith was the administrator of Bells Nursing Home and supervised the director of nursing and the assistant director of nursing at all times relevant in October and November 2020. Id. Smith was aware that Plaintiff was requesting FMLA leave for the adoption of a child when she submitted her FMLA paperwork. Id. ¶ 11. Smith reviewed Plaintiff's leave paperwork and approved it. Id. Both Janet Lovell, the nursing home's human resources (“HR”) manager, and Jennifer Coble, Plaintiff's direct supervisor, were also aware that Plaintiff was taking FMLA leave. Id.¹ Lovell tracked Plaintiff's absences during her period of leave and calculated her remaining leave on an “FMLA tracker” form. Id. ¶ 13.

A genuine dispute exists over how long Plaintiff was to remain on FMLA leave as part of her request for time off. Plaintiff testified she had planned on taking six (6) continuous weeks of leave, from October 5, 2020, through November 13, 2020. Id. Plaintiff claims that once her leave began, her direct supervisor Jennifer Coble reached out to her during her leave and asked her to return to work because the nursing home was shorthanded. Plaintiff testified that Coble contacted her during Plaintiff's FMLA leave on the following dates about returning to work: October 19, 21, 22, 23, and November 8. Id. ¶ 14. According to Plaintiff, Coble texted and called and asked her to return to work because “they needed help.” Id. ¶ 42. Plaintiff had concerns for her job and felt like she was being retaliated against. Id. ¶ 43.² Defendants deny that Coble ever contacted Plaintiff during her period of leave about returning to work.

Defendant concedes that Plaintiff worked during the week of October 19 to 23, 2020, but contends that Plaintiff had not planned to take FMLA leave that week. According to Defendant, Plaintiff scheduled her FMLA leave in this manner. Plaintiff began her leave and remained off work for two work weeks, from October 5, 2020, through October 16, 2020. Plaintiff then returned to work during the week of October 19 to 23, 2020. Finally, Plaintiff took two more weeks of FMLA leave from October 26, 2020, through November 6, 2020. Defendant argues that this proof shows Plaintiff was due back from leave on November 9, 2020.

In advance of Plaintiff's FMLA leave, her supervisor Jennifer Coble made arrangements with other department heads to determine who would assume Plaintiff's duties during her FMLA-related absences. Id. ¶ 12. Coble assumed responsibility for scheduling. Id. ¶ 36. Coble was also responsible for hiring, though Coble was not aware of any job applicants during the time in which Plaintiff was on FMLA leave. Id. ¶ 36. Allison Smith testified that overall staffing at the nursing home was “pretty good” in September, October, and November 2020, relative to the ongoing COVID-19 pandemic. Id. ¶ 37. There is no genuine dispute that the nursing home did not have adequate staff scheduled to work the weekend of November 14 and 15, 2020.

A genuine dispute, however, exists over who had responsibility for scheduling staff for the weekend of November 14 and 15, 2020. According to Plaintiff, the employee work schedules are made for two weeks at a time, usually at least a week in advance and more commonly a month in advance. Id. ¶ 35. For instance, prior to starting her FMLA leave on October 5, 2020, Plaintiff had made the schedule for the following two weeks. Id. ¶ 38. While Plaintiff was on FMLA leave and before she returned to work, Jennifer Coble created the schedule for November 8 through November 21, 2020, which included the schedule for the weekend of November 14 and 15. Id. Plaintiff cites evidence that during her FMLA leave, Coble did not split up employee schedules, fix any scheduling inconsistencies, or alter schedules to avoid weekend staffing issues. Id. ¶ 39.

Defendants counter that since Plaintiff was no longer on medical leave as of November 9, 2020, Plaintiff was ultimately responsible for scheduling for the weekend of November 14 and 15, 2020. Defs.' Resp. to Pl.'s Statement of Undisputed Fact ¶ 36. Plaintiff returned to work on Monday, November 9, 2020. Pl.'s Statement of Undisputed Fact ¶ 15. Plaintiff testified that after her return to work, Plaintiff reached out to another Harber-Laman facility to see if other employees might be willing to pick up extra hours for the weekend of November 14 and 15. Id. ¶ 19. Defendants add that there is no evidence Plaintiff discussed this step with Coble or made any other member of management aware of her efforts to correct the staff shortage for the upcoming weekend. Defs.' Resp. to Pl.'s Statement of Fact ¶ 19.

At the end of the workweek, on the morning of Friday, November 13, 2020, Plaintiff was at work when she went to the nursing office for personal protective equipment, or PPE. Pl.'s Statement of Fact ¶ 16. Plaintiff approached Jennifer Coble's desk and remarked, “Hey, I don't know what we're going to do about the schedule this weekend.” Id. Plaintiff then left the nursing office and continued on with her regular patient care duties. Id. Coble testified at her deposition that Plaintiff actually said, “I don't know what you are going to do about the weekend.” Id. ¶ 17; Defs.' Resp. to Pl.'s Statement of Undisputed Fact ¶ 16. In Defendants' view, Plaintiff's comment implied she was not taking responsibility for staff scheduling for the weekend shifts. Id. Plaintiff testified in her deposition that she believed she and Coble shared responsibility for making the schedule. Pl.'s Statement of Undisputed Fact ¶ 18. Plaintiff nevertheless conceded in her testimony that she was “ultimately” responsible for staffing. Defs.' Resp. to Pl.'s Statement of Undisputed Fact ¶ 18.

After Plaintiff made her comment to Coble, Coble went to the director of nursing Allison Smith and told her about Plaintiff's statement. Pl.'s Statement of Undisputed Fact ¶ 17. Smith and Coble made the decision to go to Craig Laman, the executive administrator, owner, and president of Bells Nursing Home. Id. ¶¶ 18, 20. Before this November 13, 2020, meeting, Coble had never had any conversation with Laman concerning Plaintiff's job performance. Id. ¶ 22. Coble and Smith met with Laman in his office and told him about Plaintiff's interaction with Coble over the weekend schedule. Id. ¶ 20. Coble and Smith also advised Laman that Plaintiff had clocked in late and left early on more than one day during the week of November 9 to 13, 2020. Id. ¶ 21. A genuine dispute also remains over whether Laman during his meeting with Smith and Coble on November 13, 2020, reviewed actual documents, including Plaintiff's timecards for weeks when Plaintiff was on FMLA leave. Plaintiff cites testimony that Laman, Coble, and Smith reviewed Plaintiff's timecard records for the week of November 9 to 13, 2020. Smith noted that on November 11, 2020, Plaintiff had left work early without telling Coble. Id. ¶ 25. The phrase “family emergency” was written on Plaintiff's time entry for that date, though there is some question about when the phrase “family emergency” was added to Plaintiff's timesheet. Id. Smith did not ask Plaintiff if the emergency was related to the care of Plaintiff's newborn, adopted baby. Id. Bells Nursing Home's FMLA policies did not include a call-in procedure or a deadline to report FMLA-related absences. Id.

Coble and Smith went on to discuss with Laman “the fact that [Plaintiff] had not covered the schedule” for the weekend of November 14 and 15 as well as the overall staffing ratios at the facility, apparently a reference to the ratio of staff to residents at the home. Id. ¶ 21. Laman, Coble, and Smith had the “collective idea” to look at staffing levels at the nursing home. Id. They reviewed staffing from the beginning of 2020 through the date of Plaintiff's termination, November 13, 2020, and specifically focused on staffing for August, September, and October 2020. Id. ¶¶ 23, 24. Smith testified that she reviewed staffing ratios daily and admitted that she had not raised any concern regarding the staffing ratios until after Plaintiff's FMLA leave, even though staffing ratios were lower in the first quarter of 2020. Id. ¶ 41.³ Staffing and staffing ratios had not been an issue prior to Plaintiff taking FMLA leave. Id. ¶ 26.

At the conclusion of the meeting, the decision was made to terminate Plaintiff's employment. Id. ¶ 27. Plaintiff cites evidence it was a “joint decision” among Laman, Smith, and Coble and that Smith and Coble recommended the termination; other evidence shows that the decision was “ultimately” Laman's to make. Id. ¶¶ 28, 29. Laman asked his office manager to summon Plaintiff to his office. Id. ¶ 30. When Plaintiff arrived at Laman's office, the office manager closed the door. Laman informed Plaintiff he had heard some things about Plaintiff's job performance and that he was going to have to let her go. Id. When Plaintiff responded that she had been on FMLA leave, Laman said, “We're going to have to let you go.” Id.

A genuine dispute exists over whether Laman knew about Plaintiff's FMLA leave prior to deciding to discharge her and meeting with Plaintiff to tell her about her termination. Plaintiff testified that when she submitted her FMLA paperwork to Lovell in HR, Lovell walked into Laman's office with the paperwork and presumably presented it to him, though Plaintiff admits she did not see Lovell hand Laman the papers and never received any leave-related documentation signed by Laman. Id. ¶ 10. According to Defendant, Laman, who is now deceased, would not have approved employee requests for FMLA leave. Rather, Allison Smith in her capacity as the nursing home's administrator approved such requests. Furthermore, Plaintiff testified in her deposition that after Laman had informed her of her termination and Plaintiff mentioned her FMLA leave, Laman seemed surprised when she made her comment about being on FMLA leave. Defs.' Resp. to Pl.'s Statement of Undisputed Fact ¶ 30.

After Plaintiff's termination, Coble prepared a written statement about her interaction with Plaintiff. Pl.'s Statement of Undisputed Fact ¶ 31. Coble's statement never referred to Plaintiff's displaying an “attitude” or “throwing” the schedule at her desk. Id. Smith prepared Plaintiff's personnel action form and included the following remarks concerning Plaintiff's termination:

Employee responsible for scheduling nursing assist [sic] and ensuring adequate staff coverage. Adjust schedule for any and all changes. Schedule for weekend of 11/14 & 11/15 was not adequately covered (see attached note). Employee consistently clocks in late without having adequate coverage in facility. Average CNA ratio has dropped from 3.03 to 2.11 over last 3 months due to employee's inability to adequately hire & retain new CNA staff.

The personnel action form designated this as “defective/improper work,” Offense Number “1,” and a Category “2” Offense. Id. ¶ 32. Defendants add that in accordance with the nursing home's disciplinary action policy, the nursing home reserves the right to terminate its employees at its discretion as result of any violation of the facility's policies, procedures, and/or rules and “with or without notice, with or without cause.” Defs.' Resp. to Pl.'s Statement of Undisputed Fact ¶ 32. Attached to Plaintiff's personnel action form is a work schedule, printed November 13, 2020, noting that Plaintiff left work early on November 11 and 12 due to a “family emergency” on November 12. Pl.'s Statement of Undisputed Fact ¶ 33. Coble did not receive any discipline for her role in preparing the work schedule for the weekend of November 14 to 15, 2020, even though the schedule did not provide adequate coverage. Id. ¶ 40.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if the party “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has stated that “[t]hough determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide.” Ashcroft v. Iqbal, 556 U.S. 662, 674, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A court does not engage in “jury functions” like “credibility determinations and weighing the evidence.” Youkhanna v. City of Sterling Heights, 934 F.3d 508, 515 (6th Cir. 2019) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Rather, the question for the Court is whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In other words, the Court should ask “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.” Id. at 251–52, 106 S.Ct. 2505. Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

ANALYSIS

Plaintiff seeks summary judgment on her claim for FMLA interference, and Defendants in their cross motion seek summary judgment just on Plaintiff's claim for FMLA retaliation. Before reaching the merits of those arguments, the Court pauses to address Defendant Harber-Laman, LLC's contention that it is entitled to judgment as a matter of law because the company was not Plaintiff's employer. Plaintiff does not actually dispute this fact and does not oppose summary judgment in favor of Harber-Laman on its argument that the company was not Plaintiff's employer. Because the Court holds no genuine dispute of fact remains over whether Harber-Laman was ever Plaintiff's employer, the Court holds that Harber-Laman is entitled to judgment as a matter of law on Plaintiff's FMLA claims against it. Therefore, Defendants' Motion is GRANTED on this issue.

The main issue presented is whether Plaintiff can prove Bells Nursing Home interfered with her rights under the FMLA. The FMLA entitles eligible employees to take up to 12 weeks of leave per year “because of the placement of a son or daughter with the employee for adoption or foster care.” 29 U.S.C. § 2612(a)(1)(B). The Sixth Circuit “recognizes two distinct theories for recovery under the FMLA: (1) the entitlement or interference theory under 29 U.S.C. § 2615(a)(1), and (2) the retaliation or discrimination theory under 29 U.S.C. § 2615(a)(2).” Hrdlicka v. General Motors, LLC, 63 F.4th 555, 572 (6th Cir. 2023); see also Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (noting that some courts refer to FMLA's interference theory as the entitlement theory). The interference theory applies when an employer attempts to “interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA leave rights. 29 U.S.C. § 2615(a)(1). Under an interference theory, “any violation of the FMLA–or of the regulations implementing it–constitutes ․ unlawful interference.” 29 C.F.R. § 825.220(b); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th Cir. 2004). The Sixth Circuit has explained that the employer's intent is not relevant to the analysis of an FMLA interference claim, although the FMLA is not a strict-liability statute. Edgar, 443 F.3d at 507 (quoting Arban v. West Pub. Corp., 345 F.3d 390 (6th Cir. 2003)) (“Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.”). In other words, “the mere occurrence of interference with an employee's FMLA rights is not a per se FMLA violation.” Allen v. Butler Cnty. Comm'rs, 331 F. App'x 389, 394 (6th Cir. 2009). An employee alleging an interference claim against his employer must still establish that the employer's violation caused him harm. Edgar, 443 F.3d at 507–508 (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002)).

The Court finds that genuine issues of material fact remain for trial over Plaintiff's FMLA interference claim. At the outset, Plaintiff has not introduced direct evidence of FMLA interference. “Direct evidence is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Thompson v. City of Lansing, 410 F. App'x 922, 929 (6th Cir. 2011)). When presented with direct evidence, a finder of fact need not draw any inferences to decide that the employer's actions were the result, in whole or in part, of discrimination. Id. at 914-15. “Direct evidence must prove not only discriminatory animus but that the employer acted on that animus.” Echols v. Kalamazoo Pub. Sch., 508 F. App'x 392, 396 (6th Cir. 2012) (citing Amini v. Oberlin Coll., 440 F.3d 350, 370 (6th Cir. 2006)). Simply put, “[d]irect evidence explains itself.” Martinez, 703 F.3d at 916. Plaintiff has not cited any direct evidence of FMLA interference. Plaintiff bases her FMLA interference claim on the fact that Bells Nursing Home evaluated Plaintiff's job performance for events occurring while she was on leave.⁴ “[A]n employer may [not] use an employee's taking of FMLA leave as a negative factor in [an] employment action ․” Brenneman, 366 F.3d at 422 (quoting 29 C.F.R. § 825.220(c)). As the Court has already noted, a number of genuine disputes remain over the decision to terminate Plaintiff. While it is true Plaintiff lost her job within a week of returning from FMLA leave, a jury would still be required to make more than one inference from the evidence to decide whether Bells Nursing Home used Plaintiff's FMLA leave as a negative factor in deciding to discharge her. In other words, Plaintiff has not adduced any direct evidence of FMLA interference.

Having concluded that Plaintiff's case is based on circumstantial proof, the McDonnell Douglas burden-shifting framework applies to her FMLA interference claim. Donald v. Sybra, Inc., 667 F.3d 757, 761-62 (6th Cir. 2012). To establish a prima facie case of FMLA interference, an employee must show “(1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled.” Hrdlicka, 63 F.4th at 572 (quoting Donald, 667 F.3d at 761). As the Sixth Circuit has explained, “[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.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007).

By the same token, “interference with an employee's FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 431 (6th Cir. 2014) (citing Edgar, 443 F.3d at 508); see also Romans v. Mich. Dept. of Human Servs., 668 F.3d 826, 841 (6th Cir. 2012). “An employee lawfully may be dismissed, preventing him from exercising his statutory rights to FMLA leave or reinstatement, but only if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave.” Wallace v. FedEx Corp., 764 F.3d 571, 590 (6th Cir. 2014) (quoting Arban, 345 F.3d at 401). Where the employer proffers a legitimate reason for taking an adverse action unrelated to the employee's exercise of FMLA rights, the plaintiff must rebut the employer's reason by showing that the reason is a pretext for discrimination. Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008).

Viewing the evidence in the light most favorable to Defendant as the non-moving party, a reasonable jury could find Defendant did not use Plaintiff's FMLA leave as a negative factor in the decision to discharge her and that Defendant had legitimate reasons for terminating Plaintiff's employment. Defendant apparently reached three conclusions about Plaintiff's job performance: (1) she did not ensure adequate staffing for the weekend of November 14 and 15, 2020; (2) she had arrived late or left early on days during the week of November 9 to 13; and (3) the staffing ratios at the nursing home had been declining throughout the year and particularly in August, September, and October 2020. Take the staffing schedule for November 14 and 15 first. Defendant has shown that Plaintiff returned from her leave on Monday, November 9, 2024, and resumed her normal duties as staffing coordinator for the nursing home. This meant Plaintiff had the responsibility to ensure that the facility had adequate staff for the weekend of November 14 and 15, 2020. There is proof that upon her return to work, Plaintiff contacted another Harber-Laman facility to find staff who could work shifts for November 14 and 15 at Bells Nursing Home. Even though Jennifer Coble set the work schedule for that weekend, Defendant has shown that Plaintiff was no longer on leave as of November 9 and would have been the person to fill any shortages in the schedule. When Plaintiff did not find staff to make up for the shortfall, she approached Coble and raised the subject. The parties disagree about the tone of that conversation and whether it played any role in Plaintiff's termination. Whatever subjective impressions Coble may have formed from that conversation, the fact is Coble could have reasonably concluded Plaintiff had not been able to fully staff the facility for the weekend shifts.

Likewise, genuine disputes of fact exist over Plaintiff's tardiness or need to leave early during the week of November 9 to 13. Although Plaintiff has testified that her absences were related to family care, there is no proof that Plaintiff advised Coble or anyone else in management of that fact at the time. Plaintiff has not shown then that her termination for being tardy or leaving work early was related to her FMLA leave. And the fact that management conducted a look-back for several months to assess how effectively Plaintiff was maintaining staffing ratios at the nursing home does not show as a matter of law that management improperly used Plaintiff's FMLA leave as a negative factor. The testimony about the staffing ratios and just how much they factored into the decision to discharge Plaintiff is not entirely clear. At most Plaintiff has shown that Laman, Smith, and Coble considered staffing levels from August and September 2020 (prior to Plaintiff's FMLA leave) and then from October 2020. While it is undisputed Plaintiff took FMLA leave for parts of October, the proof also shows that she worked two weeks of the month. There is some question about whether Laman knew about Plaintiff's FMLA leave for part of October. In sum, a reasonable juror could still find in Defendant's favor on Plaintiff's FMLA interference claim. For all of these reasons, Plaintiff's Motion for Summary Judgment on her FMLA interference claim must be DENIED.

In its Motion for Summary Judgment, Defendant seeks judgment as a matter of law just on Plaintiff's FMLA retaliation claim. An employer may not “discharge or in any other manner discriminate against an individual for opposing any practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220. An FMLA retaliation claim is different than an interference claim, because under a retaliation theory, the intent of the employer matters. Edgar, 443 F.3d at 508. “The employer's motive is relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004). Where as here a plaintiff relies on indirect evidence, courts analyze the claim under the three-step McDonnell Douglas burden-shifting framework. See Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008); Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007) (“An FMLA retaliation claim based solely upon circumstantial evidence of unlawful conduct is evaluated according to the tripartite burden-shifting framework set forth in McDonnell Douglas.”). To establish a prima facie case of retaliation, the employee must demonstrate that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action, and (3) there was a causal connection between the adverse employment action and the protected activity. Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000). Once the plaintiff has established a prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for its action. Bell v. Prefix, Inc., 321 F. App'x 423, 426 (6th Cir. 2009). If the employer has articulated a legitimate reason for its action, the plaintiff must then demonstrate that “the proffered reason was not the true reason for the employment decision.” Morris, 201 F.3d at 792–93.

The Court holds that viewing the proof in a light most favorable to Plaintiff as the non-moving party, genuine issues of material fact remain over Plaintiff's FMLA retaliation claim. As an initial matter, Plaintiff can make out a prima facie claim of FMLA retaliation. It is undisputed that Plaintiff engaged in activity protected by the FMLA and that she suffered an adverse employment action. For purposes of summary judgment, Defendant only challenges Plaintiff's proof of a causal connection between her FMLA request and her termination. The Sixth Circuit has held 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 v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012) (collecting cases). In fact, the Court of Appeals has concluded in an FMLA retaliation case that a span of two months between an employee's notice of a need for medical leave and the employee's subsequent termination is enough to establish a causal connection. Id.

In this case, Plaintiff first requested FMLA leave on September 23, 2020, took her first day of leave on October 5, 2020, and then took her last day of leave on November 6, 2020. Plaintiff lost her job on November 13, 2020, a matter of days, not months. There is no evidence that Defendant ever had concerns about Plaintiff's job performance until she took FMLA leave. This proof easily satisfies Plaintiff's “low threshold of proof” to establish causation. Id. The Court holds then that Plaintiff has carried her burden to create an inference of retaliation.

Defendant counters that Craig Laman was the sole decisionmaker in Plaintiff's termination and that Laman had no prior knowledge of Plaintiff's FMLA protected activity. The Court finds this proof inconclusive. Putting aside the fact that Plaintiff has come forward with evidence tending to show Laman would have known about her leave, there is no dispute Coble and Smith did know about Plaintiff's FMLA leave. Under the cat's paw theory of liability, a plaintiff “seeks to hold her employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.” Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 420 (6th Cir. 2021) (citing Staub v. Proctor Hosp., 562 U.S. 411, 415, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011) (other citation omitted)). In this case, a reasonable juror could find that even if they did not have final decision-making authority, Coble and Smith were the driving force behind Plaintiff's termination. Coble and Smith raised the issues with Plaintiff's job performance with Laman but never disclosed that Plaintiff had only recently returned from protected leave. Triable questions remain then over how Coble and Smith may have influenced Laman's evaluation of Plaintiff's job performance and his decision to terminate her employment.

At the next step of the burden-shifting analysis, Defendant has proffered a legitimate, nondiscriminatory reason for terminating Plaintiff's employment, though the facts related to the nondiscriminatory reasons are disputed. Defendant asserts that Laman fired Plaintiff for not having adequate staff for the weekend shifts on November 14 and 15, 2020; for tardiness and leaving early on certain days in the week leading up to Plaintiff's termination; and for an overall decline in staffing ratios at the facility. These performance-related concerns are legitimate grounds for termination.

The burden now shifts back to Plaintiff to show that Defendant's proffered reasons are pretext for discrimination. Plaintiff may establish pretext by showing that the employer's proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action. Seeger, 681 F.3d at 285 (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). While Plaintiff cannot rely on temporal proximity alone to establish pretext, “suspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence.” Id. (citing Bell, 321 F. App'x at 431). “Whichever method the plaintiff employs, he always bears the burden of producing sufficient evidence from which the jury could reasonably reject the defendant's explanation and infer that the defendant intentionally discriminated against him.” Id. (citing Clark v. Walgreen Co., 424 F. App'x 467, 474 (6th Cir. 2011)).

The Court holds that Plaintiff has presented enough proof to cast doubt on Defendant's proffered reason for her termination and whether the scheduling for the weekend of November 14 and 15, 2020 actually motivated the decision to terminate her, particularly in light of the timing of her termination. The Court has already analyzed the proof supporting such a view of the evidence. Plaintiff was fired within days of returning from FMLA leave. In addition to the remarkably close temporal proximity between her protected leave and her termination, other independent proof strengthens a reasonable inference of improper motive. Plaintiff had received only positive performance reviews during her tenure and had never received any employee discipline before taking FMLA leave. What is more, Jennifer Coble actually made out the schedule for the weekend of November 14 and 15, 2020, before Plaintiff ever returned from leave. The proof shows that Coble had assumed responsibility for Plaintiff's normal scheduling duties during Plaintiff's absence. Even so, Coble set a schedule and knew there would be inadequate staffing. Viewing all of this evidence in the light most favorable to Plaintiff, a reasonable jury could reject Defendant's explanation for the timing of Plaintiff's termination. The Court concludes then that genuine issues of material fact remain for a jury to decide Plaintiff's FMLA retaliation claim. Therefore, Defendant's Motion for Summary Judgment is DENIED as to this issue.

CONCLUSION

Defendants have shown that Harber-Laman is entitled to judgment as a matter of law on Plaintiff's claims for relief. However, genuine disputes of material fact remain over Plaintiff's FMLA interference and retaliation claims. Therefore, Plaintiff's Motion for Summary Judgment is DENIED, and Defendants' Motion for Summary Judgment is GRANTED in part, DENIED in part.

IT IS SO ORDERED.

FOOTNOTES

1.   Defendant argues that this fact is immaterial. Because there is proof in the record, however, that Coble contacted Plaintiff during her leave and later raised concerns about Plaintiff's job performance, the fact that Coble knew Plaintiff was on FMLA leave is clearly material to the issues in the case.

2.   Plaintiff adds that during her FMLA leave, Brittany Hill, the staffing coordinator at a different Harber-Laman facility, texted Plaintiff to ask if she was still with the company. Pl.'s Statement of Undisputed Fact ¶ 42.

3.   Staffing ratios continued to remain low in November and December 2020 following Plaintiff's termination. Pl.'s Statement of Undisputed Fact ¶ 41.

4.   Plaintiff has introduced proof that Jennifer Coble called or texted her during her leave and asked her to return to work because the nursing home was short-handed. Plaintiff has not cited this evidence to argue that Coble's contact with her amounted to interference with Plaintiff's FMLA rights. Even if she had, a jury would be required to make more than one inference from Coble's communications with Plaintiff to find that they constitute interference with Plaintiff's FMLA rights. Therefore, the calls and texts do not amount to direct evidence of discrimination.

S. THOMAS ANDERSON, UNITED STATES DISTRICT JUDGE