Connally v. United States Dep't of Veteran Affairs

1

LATONYA CONNALLY, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

No. 22-10236

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

March 28, 2024

KIMBERLY G. ALTMAN, MAGISTRATE JUDGE.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [28]

LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE.

In June of 2019, the John D. Dingell Department of Veterans Affairs Medical Center in Detroit, Michigan, hired LaTonya Connally as a registered nurse. And in July of 2020, it fired her. Connally asserts that her termination was unlawful under three statutes: the Emergency Paid Sick Leave Act, a temporary relief effort that gave federal employees paid leave for COVID-related reasons; the Family and Medical Leave Act; and a then-effective Michigan law.

Starting in January 2020, Connally faced a series of family and health issues. By April 2020, she had exhausted all her available leave time. So when she missed eight more days of work for COVID-related reasons, Connally was marked “AWOL,” or absent without leave, ultimately resulting in her termination.

But according to Connally, these eight days would have been excused and statutorily protected had the Detroit VA provided her with the retroactive sick leave she was entitled to under the Emergency Paid Sick Leave Act. Connally alleges that the Detroit VA violated EPSLA by failing to give her EPSLA leave and by discouraging her from, and then firing her for requesting leave under the Act. Connally further claims that the VA violated the FMLA by terminating her in retaliation for requesting FMLA leave and violated the Michigan COVID-19 Employment Rights Act by terminating her for quarantining as was required by state law.

The VA has now moved for summary judgment on all of Connally's claims. (See ECF No. 28.) The motion is fully briefed (see ECF Nos. 29 (Connally's response) 35 (VA's reply)) and does not require further argument, see E.D. Mich. LR 7.1(f).

For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the VA's motion for summary judgment.

I. Factual Background

Because the VA seeks summary judgment, the Court accepts as true all of Connally's factual allegations and presents them below. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Connally began working for the Detroit VA as a registered nurse in June 2019. (ECF No. 28-32, PageID.2654.) She was hired as a full-time “float” nurse for the hospital's outpatient mental health programs. (See id. at PageID.2641, 2645; ECF No. 28-7, PageID.1813; ECF No. 28-9, PageID.2134-2135.)

By all accounts, Connally did her job well. One nursing manager testified that she “did great work.” (ECF No. 28-9, PageID.2176.) But as a new hire, Connally was subject to a two-year probationary period where she could be terminated more easily than a non-probationary nurse. (ECF No. 28-5, PageID.1331.)

Approximately six months into this probationary period, Connally “encountered several unfortunate life circumstances with [her] family” and began missing work with some regularity. (ECF No. 28-34, PageID.2702; see id. at PageID.2632.) By July 2020, Connally was terminated. (See ECF Nos. 28-35, 28-36.)

A. Connally's Absences

1. First Absences in January and February 2020

In January 2020, Connally's mother had emergency surgery and from then on required 24-hour care. (See ECF No. 28-2, PageID.1176; ECF No. 28-34, PageID.2702.) Connally was “suddenly tasked with becoming [her] mother's sole caretaker.” (ECF No. 28-34, PageID.2702.) But Connally was not eligible to take leave under the Family and Medical Leave Act because she had only worked for the VA for about seven months. See 29 U.S.C. § 2611(2)(A) (defining an “eligible employee” under the FMLA as one who has worked for the employer for at least 12 months); (ECF No. 28-34, PageID.2702.) So she requested “family friendly leave,” which allowed her to use her accrued sick leave to care for her mother. (See ECF No. 28-32, PageID.2664; ECF No. 28-34, PageID.2702.)

Connally wound up missing 57.25 hours-a little over seven days-in the 36 days between January 13, 2020, and February 18, 2020. (See ECF No. 28-32, PageID.2633.) Then Connally ran out of available leave time. (See id. at PageID.2632; ECF No. 28-2, PageID.1177.) In late February 2020, Connally's supervisor, Yvette Nickerson, sent Connally a “sick leave counseling” letter, informing her that she had “[l]ess than 24 hours sick leave balance.” (ECF No. 28-10.) Connally could still request to use vacation time or unpaid leave in lieu of sick leave, but her requests did “not have to be granted,” the letter explained. (Id.; see also ECF No. 28-5, PageID.1315-1316 (deposition of human resources employee) (explaining supervisors' discretion to grant use of annual leave for sick leave purposes).) The letter also warned that “your absence from duty has an adverse impact upon the operational efficiency of this service.” (ECF No. 28-10.)

When Connally received the counseling letter on February 28, she had not taken any time off for 10 calendar days. As far as the Court can tell, Connally did not take any time off again until March. (See ECF No. 28-32, PageID.2633.)^[1]

2. The Effects of COVID-19 in March 2020

Then came a global pandemic.

At the beginning of March 2020, Connally's mother was supposed to transfer from a skilled nursing facility to Connally's home. (See ECF No. 28-2, PageID.1180; ECF No. 28-34, PageID.2702.) Connally had no remaining sick leave, but Nickerson permitted her to use a few days of vacation time “in preparation [for] [her] mother's discharge.” (ECF No. 28-34, PageID.2702; see ECF No. 28-7, PageID.1824; ECF No. 28-32, PageID.2633.)

But Connally's mother was not discharged as planned. Instead, she was admitted to the hospital for an acute pulmonary embolism “complicated [by] the infection of COVID-19.” (ECF No. 28-29, PageID.2615; see ECF No. 28-14, PageID.2287; see also ECF No. 28-2, PageID.1180.)

Connally kept Nickerson updated. On March 23, she informed Nickerson that her mother was in the hospital and had tested positive for COVID-19. (ECF No. 2811, PageID.2264.) Two days later, Connally told Nickerson that she herself was feeling sick but had “none of the symptoms that are listed for the virus. No fever, no cough.” (ECF No. 28-12, PageID.2270-2271.) The day after, March 26, Connally was cleared to go to work if she wore a mask. (ECF No. 28-11, PageID.2259; see id. at PageID.2261.) She texted Nickerson that she would “return to work tonight as instructed.” (Id. at PageID.2257.)

However, Connally did not return to work that evening. (ECF No. 28-32, PageID.2634; see ECF No. 28-22.) She requested more time off to care for her mother (see ECF No. 28-7, PageID.1824; ECF No. 28-9, PageID.2226-2227), who was discharged from the hospital, still COVID positive, the following day (see ECF No. 282, PageID.1180-1181; ECF No. 28-14, PageID.2287; ECF No. 28-29, PageID.2615). Nickerson “granted [Connally] all the leave” that Connally had left. (ECF No. 28-7, PageID.1825.) When that ran out, the service chief approved three days of leave without pay. (Id. at PageID.1778, 1826; ECF No. 28-8, PageID.1981.)^[2] Meanwhile, the global spread of COVID-19 made things at the VA “very, very hectic. People were dying.” (ECF No. 28-8, PageID.1958.) As Nickerson told Connally at the time, the VA was in the midst of an “emergency” that required “all hands on deck.” (ECF No. 28-11, PageID.2255.) Indeed, Connally's unit had its first COVIDpositive patient in late March 2020. (ECF No. 28-9, PageID.2148.) And the VA was creating “disaster teams” in an effort to adequately staff the hospital with nurses from across the country. (Id. at PageID.1959.)

The national VA office was also frequently changing its guidance for staff who were exhibiting symptoms of the virus or who had been exposed. (See ECF No. 28-7, PageID.1830.) “At first they said if you [were] exposed[,] you ha[d] to be off two weeks,” Nickerson explained. (Id.) But then “nobody” was at work because “everybody had been exposed,” so a COVID exposure was no longer a sufficient reason to be absent. (Id.) And at certain points the need for staff was so great that “if you weren't positive of [sic] COVID and sick, [the VA] basically wanted to say that you were able to work.” (Id.)

3. AWOL Status in April 2020

Connally was due to return to work on April 2, 2020. (ECF No. 28-2 PageID.1184.) But on April 1, Connally texted Nickerson that she would not be coming back as planned. (ECF No. 28-11, PageID.2256.) She wrote, “I will not be able to return to work tom[orrow] . . . as I originally thought. Things are not going well for my mother.” (Id.) Nickerson responded, “Please know you have used all available sick leave as family leave . . . I cannot grant you any additional leave at this time.... If you do not return your status is AWOL. You are a probationary employee and this could jeopardize your employment.” (Id.)^[3] Connally wrote back, “It's not my intent to jeopardize my employment. My mom is in a battle for her life right now.” (Id.)

That same day, Connally filed a formal request for leave without pay from April 1 to June 10, 2020. (ECF No. 28-14, PageID.2286.) She cited “a serious health condition” in her request and provided HR with a letter from her mother's physician explaining the care she would need from Connally. (Id. at PageID.2286-2287.)

An HR representative texted Connally the following morning, April 2, that she should “come to work” and texted again the next day, April 3, telling Connally that her request for leave without pay had been denied. (ECF No 28-16, PageID.2472, 2746.) Connally received a formal denial letter from...