Tilley v. Kalamazoo Cnty. Rd. Comm'n

777 F.3d 303

Terry TILLEY, Plaintiff–Appellant,

v.KALAMAZOO COUNTY ROAD COMMISSION; Kalamazoo County Road Commission Board of Commissioners, Defendants–Appellees.

No. 14–1679.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 15, 2015.

Decided and Filed: Jan. 26, 2015.

ARGUED:William F. Piper, William F. Piper, PLC, Portage, Michigan, for Appellant. Robert C. Stone, Smith Haughey Rice & Roegge, Grand Rapids, Michigan, for Appellees. ON BRIEF:William F. Piper, William F. Piper, PLC, Portage, Michigan, for Appellant. Robert C. Stone, Jon Vander D. Ploeg, Smith Haughey Rice & Roegge, Grand Rapids, Michigan, for Appellees.

Before: SUHRHEINRICH and GRIFFIN, Circuit Judges; LEITMAN, District Judge.^*

OPINION

LEITMAN, District Judge.

In this action, Plaintiff–Appellant Terry Tilley (“Tilley”) alleges that Defendant–Appellee Kalamazoo County Road Commission (the “Road Commission”) terminated his employment based on his age in violation of Michigan's Elliot–Larsen Civil Rights Act (the “ELCRA”), M.C.L. § 37.2201 et seq., and that the Road Commission interfered with his right to, and retaliated against him for taking, medical leave under the Family Medical Leave Act (the “FMLA”), 29 U.S.C. § 2601 et seq. The district court granted the Road Commission's motion for summary judgment on all of Tilley's claims. For the reasons that follow, we AFFIRM summary judgment on Tilley's ELCRA age-discrimination claim and REVERSE summary judgment on Tilley's claims under the FMLA.

I.

Tilley is 59 years old. He began working for the Road Commission in 1993. In 2008, Tilley began reporting principally to Travis Bartholomew, the Road Commission's general superintendent.

Tilley's relationship with Bartholomew deteriorated in 2010. In March of that year, Bartholomew formally reprimanded Tilley for allegedly displaying a disrespectful attitude, and Bartholomew required Tilley attend Employee Assistance Program counseling. In January 2011, Bartholomew reprimanded Tilley a second time after Tilley purportedly failed to submit a set of organizational goals by a deadline Bartholomew had set.

Three additional disputes between Tilley and Bartholomew in the spring of 2011 precipitated Tilley's firing and this lawsuit. The first dispute related to Bartholomew's request that Tilley draft a job description. Tilley completed the draft and submitted it to Bartholomew. Bartholomew reviewed it and directed Tilley to make certain revisions. Tilley says that each time he tried to submit a final version of the job description, Bartholomew directed him to make additional changes—and thereby unfairly prevented him from completing the project.

The second dispute related to Bartholomew assigning Tilley to investigate alleged safety violations at a Road Commission garage. Tilley did not believe he was the proper person to conduct the investigation. Tilley nonetheless conducted the inquiry and ultimately issued oral warnings to five Road Commission employees. Bartholomew was not satisfied with the discipline Tilley imposed, and he ordered Tilley to issue written reprimands to the employees in question. Tilley says when he provided drafts of the reprimands to Bartholomew, Bartholomew again repeatedly demanded that Tilley revise his work—and again frustrated Tilley's ability to complete the assignment.

The third and final dispute related to an incident at a job site in Kalamazoo Township. After Tilley visited the site, two women who were upset over a drainage issue blocked Tilley's vehicle and refused to let him leave the property. Tilley reported the incident to Joanna Johnson (“Johnson”), the Road Commission's managing director, and Johnson informed Bartholomew. After Bartholomew spoke with one of the women, he called the Kalamazoo Township Police Department. Bartholomew told the police that one of the women had alleged that Tilley bumped her with his car—a claim Tilley strenuously denied and which was never substantiated. The police arrived and defused the situation, and Tilley returned to his office. Bartholomew then ordered Tilley to obtain a copy of the police report and prepare his own summary of the incident.

On July 20, 2011, Bartholomew suspended Tilley for five days, ostensibly for failing to complete any of the three assignments described above—the job description, the written reprimands, and the summary of the Kalamazoo Township incident. Bartholomew accompanied the suspension with a written reprimand in which he gave Tilley new deadlines to complete the three assignments. Bartholomew ordered Tilley to submit final versions of the employee reprimands by July 28; the summary of the Kalamazoo Township incident by July 29; and the updated job description by August 1. Bartholomew advised Tilley in writing that the reprimand constituted his “final warning,” that Tilley needed to “complete the tasks assigned to [him] previously within the new timelines provided,” and that “[a]ny continued performance related deficiencies or any unacceptable conduct or attitude will not be tolerated and [his] employment ... will be terminated.”

Tilley insists that, in compliance with Bartholomew's deadline, he completed and submitted the written employee reprimands to Bartholomew before the close of business on July 28. The Road Commission does not dispute that Tilley turned in a version of the reprimands to Bartholomew on July 28. However, the Road Commission contends that Bartholomew found Tilley's July 28th submission deficient, and that Tilley never submitted a satisfactory final version of the reprimands as directed.

Next, Tilley says that he completed and submitted his final report of the Kalamazoo Township incident before July 29. Tilley, however, admits that he did not provide his report directly to Bartholomew by that date. Tilley says that instead he gave the finished report to area superintendent Bill DeYoung (“DeYoung”) before the July 29th deadline, with instructions for DeYoung to deliver the report to Bartholomew. DeYoung, however, failed to deliver the report to Bartholomew until August 3—five days after the July 29 deadline.

Finally, Tilley did not complete and submit the updated job description by the third and final deadline on August 1. Tilley explains that on that morning, before he could complete his final edits to the job description, he experienced symptoms that made him fear that he was suffering a heart attack. A co-worker took Tilley to the hospital, and Tilley was admitted for observation. Tilley's doctors discharged him the next day (August 2). That day, Tilley's wife informed the Road Commission that Tilley would not be able to return to work until at least August 5. Tilley never submitted the final revisions to the job assignment.

On August 9, Carla Benison (“Benison”), an “employee representative” for the Road Commission sent Tilley FMLA paperwork related to his absence from work. In her cover letter, Benison told Tilley that he was “eligible for FMLA leave” and that it was “important that we [ ] utilize Family Medical Leave Act (FMLA) leave” during his time off. Benison also provided Tilley a “Notice of Eligibility and Rights & Responsibilities” form (the “Eligibility Notice”) on which Benison checked the box “inform[ing]” Tilley that he was “eligible for FMLA leave.” The Eligibility Notice contained another box to be checked when an employee was “not eligible for FMLA leave” because he “[did] not work and/or report to a site with 50 or more employees within 75–miles,” but Benison left this alternate box blank. Finally, the Eligibility Notice informed Tilley that he needed to obtain and submit an appropriate medical certification from his physician to support his request for FMLA leave.

On August 12, the Road Commission mailed Tilley a letter formally terminating his employment. The Road Commission told Tilley that it was terminating his employment because, despite his claims to the contrary, he had failed to timely submit final and satisfactory versions of the employee reprimands, his summary of the Kalamazoo Township incident, and the job description.

Following his termination, Tilley filed suit in the Kalamazoo County Circuit Court. As relevant to this appeal, Tilley alleged that the Road Commission terminated his employment due to his age in violation of the ELCRA. Tilley further claimed that the Road Commission interfered with his right to FMLA protected leave and retaliated against him for taking such leave when it terminated his employment.

The Road Commission removed the action to the United States District Court for the Western District of Michigan, and, following discovery, moved for summary judgment on all of Tilley's claims. The district court granted the Road Commission's motion.¹

The district court held that Tilley had failed to establish a prima facie case of age discrimination in violation of the ELCRA. That court explained that Tilley had failed to show that he was replaced by a younger person or that the Road Commission treated similar-situated younger employees differently than it treated him. The district court then held that even if Tilley had established a prima facie case of age discrimination, it still would have granted summary judgment in favor of the Road Commission on Tilley's ELCRA age-discrimination claim because the Road Commission had provided a legitimate, non-discriminatory, non-pretextual reason for his termination: his failure to complete assignments by the deadlines Bartholomew had set.

The district court next held that the Road Commission was entitled to summary judgment on Tilley's FMLA claims because Tilley was not an “eligible employee” under the FMLA. The district court held that, pursuant to 29 U.S.C. § 2611(2)(B)², an employee of a public agency qualifies as an “eligible employee” only if, among other things, his employer employs at least 50 employees at, or within 75 miles of, his workplace at the time the employee seeks FMLA leave (the “FMLA 50/75–Employee Threshold”)....