Festerman v. Cnty. of Wayne

ROBERT FESTERMAN, Plaintiff, v. COUNTY OF WAYNE, A Michigan Charter County, Defendant.

Case No. 13-11874

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: June 24, 2014

Honorable Laurie J. Michelson

Magistrate Judge R. Steven Whalen

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [16]

This is a Family and Medical Leave Act case in which Plaintiff Robert Festerman, a former Wayne County Jail Division police officer, asserts that Defendant Wayne County interfered with his ability to take leave for an anxiety disorder, and discriminated against him based on that disorder. This matter is before the Court on Defendant's motion for summary judgment (Dkt. 16), and Plaintiff's motion for summary judgment (Dkt. 18). These cross motions for summary judgment require the Court to examine two FMLA issues. First, interference and retaliation claims both contain a knowledge element, and both claims fail if the employee cannot demonstrate that the employer had notice or knowledge that he was attempting to exercise his FMLA rights. Thus, the Court addresses the standard for proper notice that an employee is requesting FMLA leave. Second, Plaintiff's retaliation claim requires that the Court examine the standard for constructive discharge.

Having reviewed the parties' motions and responses, the Court finds that oral argument will not aid in resolving the pending motions. See E.D. Mich. LR 7.1(f)(2). Because Plaintiff has not presented sufficient evidence to establish a prima facie case of either interference or retaliation, and has not presented specific facts demonstrating a genuine issue for trial, the Court grants Defendant's motion for summary judgment and thus, denies Plaintiff's motion.

I. FACTUAL BACKGROUND

Because each side has moved for summary judgment, where there are factual disputes, the Court presents each side's account.

Plaintiff was hired in October 2007 under the classification "Police Officer" to provide inmate security in Defendant's Jail Division Two, one of three jail facilities in Wayne County. (Dkt. 18-7, Position Desc., at 26.) Plaintiff's FMLA claims arise from Defendant's practice of ordering mandatory overtime. During Plaintiff's tenure, his department was "understaffed," and, "[a]s a result, involuntary overtime [wa]s a regular occurrence; deputies d[id] not have the right to refuse overtime." (Dkt. 16-7, Findings of Fact in Cty. of Wayne, Case No. D12 C-0189 (Mich. Emp't Relations Comm'n Oct. 16, 2013), at 18.)¹ Defendant ordered mandatory overtime based on a hierarchical list. First, the shift supervisor would ask officers listed on the voluntary "overtime request sheet." (Dkt. 16-5, Collective Bargaining Agreement, at 43-44.) After exhausting the volunteer list, the supervisor would rotate through the remaining officers beginning with the officer with the least seniority. (See Dkt. 16-15, Jackie Loving Dep., at 14-16.)

If an officer refused to report for mandatory overtime, his or her supervisor would issue a Conduct Incident Report ("CIR"). (Dkt. 16-9, Scott Gatti Dep., at 10-12.) A CIR is "essentially amemo" that details any incident of misconduct or refusal to follow a direct order. (Id. at 10.) During Plaintiff's employment, Defendant followed a "zero tolerance policy," and officers receiving CIRs would likely be "sent over to the discipline duty chief for a hearing . . . [subject to] flexibilities for the realities" of the sheer number of officers being ordered onto overtime shifts. (Id. at 12.)

Plaintiff alleges that this mandatory overtime practice and the related administrative measures came into conflict with his medical need to limit his working hours. At 4:00 p.m. on March 3, 2012, Plaintiff reported to Sergeant Becky Tripp that he was experiencing "intermittent chest pain" accompanied by "shortness of breath." (Dkt. 18-2, Incident Report of Mar. 3, 2012.) Plaintiff left work to go to the emergency room and was admitted to the hospital for an overnight stay. (Dkt. 18-3, Injury Report of Mar. 3, 2012.) Upon returning to work on March 8, he submitted documentation of the incident itself and received confirmation that the Personnel Office had received it. (Dkt. 18-4, Notice of Receipt.) On March 9, Plaintiff's doctor advised him in writing to "limit working hours to 8 [hours per] day." (Dkt. 18-5, Doctor's Orders and Prescription.) Plaintiff also began taking anxiety medication at this time. (Dkt. 16-3, Robert Festerman Dep., at 132.) Plaintiff asserts that he submitted the doctor's note to a supervisor, Sergeant Jackie Loving, on March 12, 2012. (Dkt. 16-19, Pl.'s CIRs and Rebuttals, at 9.) Sergeant Loving, however, avers that Plaintiff did not deliver the note to her, and that even if Plaintiff had given her the note, she would not have had authority to act on it. (Dkt. 16-15, Jackie Loving Dep., at 25.) Whether Plaintiff gave Loving the note or not, both parties agree that for approximately one month, Defendant accommodated Plaintiff's working hours restriction on an informal basis. (Dkt. 18, Pl.'s Br., at 3, ¶ 10; Def.'s Br., Dkt. 16, at 7.)

By March 28, 2012, Commander Scott Gatti became aware of Plaintiff's general need for medical accommodation. (Dkt. 16-9, Scott Gatti Dep., at 19.) That same day, the Personnel Office decided that even officers with doctor's notes limiting their working hours would be ordered onto overtime shifts, issued CIRs if they refused to report to an overtime shift, asked to explain their refusal, and required to "submit documentation." (Dkt. 16-18, Command Directive, at 1.) Supervising officers announced this policy change during roll call on at least two occasions: March 29 and April 4, 2012. (Dkt. 16-3, Festerman Dep., at 167-69.)

On April 6, 2012, Sergeant Dwight Reed issued a CIR to Plaintiff for his refusal to work an overtime shift, while acknowledging that Plaintiff had stated that "he ha[d] medical documentation that states he can not work more than eight hours." (Dkt. 18-8, CIR of Apr. 6, 2012.) In a rebuttal Plaintiff filed to protest this CIR, he asserted that he had submitted his doctor's note to a supervisor. (Dkt. 16-19, Pl.'s CIRs and Rebuttals, at 9.)

On April 8, 2012, Loving issued Plaintiff another CIR without any comment on Plaintiff's medical condition. (Id. at 588.) Plaintiff again filed a rebuttal, this time stating that he had refused to work the shift because he had a scheduled vacation day, and was following his doctor's orders. (Id. at 590.)

The next day, April 9, Plaintiff discussed his medical condition with two Human Resources employees: Debra Blair, Director of Labor Relations, and Shirley Prieskorn, Disabilities Manager. The two advised Plaintiff that he should fill out a leave of absence request form to be approved for leave under FMLA or the Americans with Disabilities Act ("ADA"). (Dkt. 16-3, Festerman Dep., at 196.) Plaintiff avers that he inquired whether his submission of his doctor's note on March 12 "fulfilled [his] obligation request putting my employer on notice about my medical need," and that Prieskorn told him that it did. (Dkt. 16-3, Festerman Dep., at197.) He also acknowledges, however, that neither Prieskorn nor Blair was aware of his medical condition until the April 9 conversation. (Id.) Plaintiff spoke to Prieskorn and Mary Sullivan, Leave Coordinator, on April 12, 2012, regarding "the FMLA and ADA." (Id. at 198.) The next day, Plaintiff received "an ADA packet and [a] leave of absence packet" in the mail. (Id.)

On April 10, 2012, while Plaintiff was on a scheduled leave day, Commander Scott Gatti issued a recommendation that Plaintiff be referred to an Administrative Review and Determination Hearing "to be held accountable for his refusal to follow a direct order." (Dkt. 18-12, Disc. Action Mem.)

That same day, April 10, Plaintiff received a text message from a coworker informing him that "[s]omebody wore a T-shirt to work today that says 'I refuse. I have a note from my mom.'" (Dkt. 16-3, Festerman Dep., at 203.) After conferring with other coworkers who had similar medical restrictions, Plaintiff joined the group for a meeting with Sergeant Loving and two union stewards. (Id. at 211.) The group alleged that the t-shirt was discriminatory. Shortly thereafter, the Defendant initiated an investigation into the incident and designated Sergeant Becky Tripp as the lead investigator. (Dkt. 16-17, Becky Tripp Dep., at 27.) Plaintiff filed an internal complaint regarding the incident on June 11, 2012, noting that he felt he had been "harassed" during the course of the investigation. (Dkt. 16-24, Pl.'s Internal Compl., at 204.)

In support of his FMLA interference claim, Plaintiff points out that Defendant revised its position description for police officers on April 26, 2012. (Dkt. 18-18, Revised Position Desc.) In addition to the original position requirements, Defendant added two "essential job functions" to the position: (1) a requirement that police officers "be physically and mentally able to work a minimum of 40.5 hours per work week," a change from the original 40 hours; and (2) arequirement that police officers "be physically and mentally able to work mandatory overtime." (Id. at 56.)

On May 3, 2012, Plaintiff turned in his completed leave of absence request form. (Dkt. 16-2, Pl.'s FMLA Packet, at 56.) Four days later, Defendant informed Plaintiff that he had been designated and approved for intermittent sick leave under FMLA from April 26, 2012, to October 26, 2012, subject to final approval from the Human Resources Department. (Dkt. 16-21, FMLA Designation Notice.) Mary Sullivan, however, requested further clarification of the medical certificate that Plaintiff had provided due to her confusion about Plaintiff's actual restrictions and concerns that his restrictions would "mean that he could not work full-time any longer . . . [and] how [Plaintiff's need for intermittent leave days] would relate to the 6 to 8 hours [restriction]." (Dkt. 16-23,...