Anderson v. Detroit Transp. Corp.

435 F.Supp.3d 783

Michael ANDERSON, Plaintiff,

v.DETROIT TRANSPORTATION CORPORATION and Brenda Walker, Defendants.

Case No. 18-13697

United States District Court, E.D. Michigan, Southern Division.

Signed January 27, 2020

Andrew John Laurila, James B. Rasor, Rasor Law Firm, Royal Oak, MI, for Plaintiff.

Joseph A. Starr, Ryan J. Koss, Starr, Butler, Alexopoulos, & Stoner, PLLC, Southfield, MI, for Defendants.

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DISMISSING WITHOUT PREJUDICE PLAINTIFF'S PWDCRA CLAIM AGAINST DEFENDANT BRENDA WALKER INDIVIDUALLY, AND ORDERING ADDITIONAL BRIEFING

ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

Plaintiff Michael Anderson sues Defendant Detroit Transportation Corporation ("DTC") for Family Medical Leave Act ("FMLA") interference and discrimination, Americans with Disabilities Act ("ADA") retaliation, and Michigan's Persons with Disabilities Civil Rights Act ("PWDCRA") retaliation. (ECF No. 29, PageID.206-13.) Anderson also sues DTC's Human Resource Director, Defendant Brenda Walker, for FMLA interference and discrimination, and PWDCRA retaliation. (Id. , PageID.202, ¶ 20; id. , PageID.208-13.) Anderson alleges that he was unlawfully fired from his employment as a Transit Police Officer. (Id. , PageID.202, ¶ 17.) Anderson moves for summary judgment against Defendants on Anderson's claim of FMLA interference. (ECF No. 31.) Defendants move for summary judgment on all grounds of Anderson's complaint. (ECF No. 32.) Both motions have been fully briefed. (ECF Nos. 35, 35, 38, 39.) The court finds a hearing unnecessary. E.D. Mich. L.R. 7.1(f)(2). For the reasons provided below, both Anderson's and Defendants' motions will be denied.

I. BACKGROUND

The facts below are uncontested except where specifically noted. Fed. R. Civ. P. 56(a).

Anderson began working as a Transit Police Officer with DTC in 2009. (ECF No. 31-2, PageID.279.) Transit Police Officers serve as "sworn police officer[s] with full apprehension and arrest powers" and operate primarily in "facilities owned[,] controlled, or operated by the [DTC] and Detroit Department of Transportation." (ECF No. 32-5, PageID.582.)

On December 21, 2017, Anderson's doctor, Matthew Wietrzykowski, submitted a letter to DTC stating that Anderson could not work from December 21, 2017 to January 3, 2018 due to elevated blood pressure. (ECF No. 31-4, PageID.358.) Anderson took the time off. (ECF No. 31-2, PageID.310; ECF No. 32-17, PageID.638.) While Anderson was on leave, on January 2, 2018, Dr. Wietrzykowski completed an FMLA form for Anderson relating to symptoms from Cervical Disc Disease. (ECF No. 31-3.) The FMLA request indicated that Anderson's condition caused intermittent pain, treated and controlled by pain medication. (Id. , PageID.355.) Prescriptions included Flexeril 10mg, Norco 325/10, and Morphine Sulphate 10mg. (Id. , PageID.356.) The request sought FMLA leave for occasional late arrivals, early departures, and absences. (Id. , PageID.355.) Dr. Wietrzykowski identified the frequency as one or two times per month. (Id. )

Anderson returned to work on January 4, 2018. (ECF No. 31-2, PageID.310.) On January 5, 2018, Walker, acting on behalf of DTC, sent a letter to Anderson informing him of his benefit options, including short-term disability. (ECF No. 32-17.) The letter referred back to Anderson's leave starting on December 21, 2017 and indicated that "disability benefits and paid sick or vacation time runs concurrent with FMLA." (Id. , PageID.638.) There is dispute over whether Anderson informed Walker, the HR supervisor, that he had returned to work on January 4. Anderson testified that he spoke to Walker on the phone on January 4 and telling Walker that he was "on shift." (ECF No. 31-2, PageID.311.) Anderson also claimed that Walker would have known that he had returned to work given that Anderson was on the Detroit Auto Show work schedule, which would have been presented to Walker. (Id. ) In contrast, Walker testified she was unaware of Anderson's return until almost two weeks later, on January 17, 2018. (ECF No. 32-9, PageID.614.)

On January 11, 2018, Dr. Wietrzykowski confirmed via fax that Anderson's prescriptions would not prevent Anderson from performing "all of the essential functions of his job, which may include the use of a firearm." (ECF No. 32-18, PageID.644.) That same day, Walker approved Anderson's FMLA request submitted on January 2. (ECF No. 31-5.) The letter of approval indicated that Anderson was entitled to take a combined 480 hours over the course of the next year, until the end of December 2018. (Id. , PageID.360.) The letter again emphasized that other leave, "such as disability leave and workers' compensation[,] ... runs concurrently with ... FMLA leave." (Id. )

On January 18, 2018, Walker called Anderson into her office. (ECF No. 31-2, PageID.327; ECF No. 31-6, PageID.381.) Walker informed Anderson that he needed to submit to a drug test and ordered Anderson to leave work. (ECF No. 31-2, PageID.328; ECF No. 31-6, PageID.381-82.) There is no indication in the record that Walker told Anderson that being ordered off work constituted FMLA leave. Walker testified that her short conversation with Anderson was essentially limited to telling Anderson to "report to [the drug test provider] ... to have this drug screen performed" and that Walker would "contact [Anderson] when [Anderson is] able to come back to work." (ECF No. 31-6, PageID.381-82.) Anderson himself testified that "[Walker] never gave me a reason why I was off." (ECF No. 31-2, PageID.311.) That same day, Walker sent Anderson a letter specifying that Anderson had not provided DTC with a "return to work note from [Anderson's] doctor" and had not obtained a "verifiable negative ... drug test result[ ]" prior to Anderson returning to work. (ECF No. 32-21, PageID.650.) The letter nowhere indicated that Anderson was being taken off work because of his health issues or that his absence from work while he obtained the necessary documentation to return to work was counted as FMLA leave.

Anderson performed a drug test on January 18. Before the results had come back, on January 23, Anderson sent Walker and Barbra Hanson, DTC's General Manager, a letter asking why he was placed off work. (ECF No. 31-7, PageID.396.) Anderson stated in the letter that he was "[never] notified verbally or in writing an exact reason why [he was] off work." (Id. ) Walker responded via letter that same day, reiterating that Anderson had failed to provide a return to work note from his physician and had not obtained a passing drug test result before beginning work, mentioning that Anderson had admitted taking prescription medications. (ECF No. 31-8, PageID.398.) Walker again provided no indication that Anderson's leave was in any way related to FMLA or pain caused by Cervical Disc Disease.

On February 3, 2018, Walker testified that he received the results from Anderson's drug test. Anderson tested positive, at over 15,000 ng/ml, for Morphine , 8,844 ng/ml in Hydrocodone, and 2,563 ng/ml Hydromorphone. (ECF No. 32-22, PageID.652.) However, Walker admitted that Anderson had obtained a "verified negative" from the Medical Review Officer ("MRO"), who oversaw the drug test. (ECF No. 31-6, PageID.384-85.) Walker explained that this was due to the MRO confirming with Anderson and his doctor that Anderson was prescribed the drugs for which he tested positive. (Id. )

No evidence is produced concerning communications between Walker and Anderson for the next few weeks. On February 22, 2018, Anderson was ordered to undergo an Independent Medical Evaluation ("IME") to determine his ability to serve as a Transportations Security Officer while taking the medications prescribed by his doctor. (ECF No. 31-2, PageID.319; ECF No. 32-25, PageID.669.) On February 22, Walker also sent Anderson an explanation of benefits letter with almost exactly the same content as Walker's January 5 letter. (ECF No. 32-23.) The letter's subject concerned "Explanation of Benefits during a Short Term Disability Leave of Absence." (Id. , PageID.654.) The letter indicated that Anderson's last day of work was January 18, 2018 and that "disability benefits and paid sick or vacation time runs concurrent with FMLA." (Id. )

After receiving the results of the IME, Walker sent Anderson a letter on March 2, 2018. (ECF Nos. 32-24, 32-25.) Walker informed Anderson that he was "found not fit for duty with the medications you are presently taking." (ECF No. 32-25, PageID.669.) Walker added that Anderson will be provided paperwork to register for short-term disability. (Id. )

Following Walker's March 2 letter, Anderson and Dr. Wietrzykowski communicated with Walker in an attempt to get Anderson back on the job. Dr. Wietrzykowski sent a message to Walker on March 8 predicting that medication would not be detected in Anderson for testing after March 30. (ECF No. 31-11, PageID.414.) Walker sent Anderson a letter on March 20 stating that his FMLA leave time, originally approved on January 11, would expire on April 5. (ECF No. 32-27, PageID.673.) Walker followed up with a letter on March 29 stating that Anderson could return to work only after taking a drug test and obtaining a "verifiable negative" result. (ECF No. 31-12, PageID.416.)

Anderson took his second drug test on April 4. (ECF No. 31-13.) The results again tested positive for Hydrocodone and Hydromorphone. (Id. , PageID.418.) However, the MRO who conducted the test provided Anderson with a "verified negative." (Id. , PageID.419.) Walker herself described the results as "verified negative." (ECF No. 31-6, PageID.390.)

On April 20, Walker sent Anderson a termination letter ending his employment with DTC. (ECF No. 32-32.) Walker stated that Anderson "used all of [his] allotment of eligible hours and ... exhausted [his] leave time under the [FMLA]." (Id. , PageID.683.) Walker titled the letter "Exhausted Family Medical Leave Act (...