Cook v. Avon Prot. Sys., Inc.

Citation913 F.Supp.2d 436
Decision Date20 December 2012
Docket NumberCase No. 1:11–cv–893.
PartiesRhonda COOK, Plaintiff, v. AVON PROTECTION SYSTEMS, INC., Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)


Daniel P. O'Neil, Thompson O'Neil & Vanderveen P.C., Traverse City, MI, for Plaintiff.

Mary L. Tabin, Mary Ann Cartwright, Rhoades McKee P.C., Grand Rapids, MI, for Defendant.


JANET T. NEFF, District Judge.

Plaintiff Rhonda Cook, a former employee of Defendant Avon Protection Systems, Inc., filed this action under the Family and Medical Leave Act of 1993 (“FMLA” or the Act), 29 U.S.C. § 2601 et seq. Pending before the Court is Defendant's Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 (Dkt 37). Plaintiff filed a response (Dkt 38), and Defendant filed a reply (Dkt 45). Having conducted a Pre–Motion Conference in this matter and having now fully considered the parties' written briefs, stipulated statements of fact and accompanying exhibits, the Court finds that the relevant facts and arguments are adequately presented in these materials and that oral argument would not aid the decisional process. See W.D. Mich. LCivR 7.2(d). For the reasons that follow, the Court concludes that Defendant's motion is properly denied.


On or about June 26, 2006, Defendant, which manufactures respiratory protection products, hired Plaintiff as a production worker (SMF 1 ¶ 1; Dkt 1–2, Compl. ¶ 5). In 2011, Plaintiff worked third shift (3:00 p.m. to 11:00 p.m.), Monday through Friday (SMF ¶¶ 2–3). At all relevant times during this case, Defendant had an FMLA policy that it provided to all employees and posted on its company bulletin boards ( id. ¶¶ 4, 11–12). The policy notified employees of their FMLA rights and allowed employees to take up to twelve workweeks (60 work days) of FMLA leave in any 12–month period ( id. ¶ 5).

Defendant measured the FMLA twelve-month period on a rolling backward basis (SMF ¶ 6). Specifically, the policy provided the following:

3.9 An eligible employee can take up to 12 weeks of leave under this policy during any 12 month period. The Company will measure the twelve month period as a rolling 12 month period measured backward from the date an employee uses any leave under this policy. Each time an employee takes leave, the Company will computer [sic] the amount of leave taken under this policy and subtract it from the 12 weeks available leave. The balance remaining is the amount the employee is entitled to take at that time.

( id. ¶ 7). Regarding FMLA leave for a newborn child, Defendant's policy provided the following:

7.3 Leave to care for a newborn child or newly placed child may only be taken continuously, unless the employer and employee agree otherwise. Leave for birth, adoption or foster care of a child must be taken within one year of the birth or placement of the child. Employees eligible for salary continuance will receive said continuance only for the period of time in which they are certified by a doctor to be on leave for medical reasons.

( id. ¶ 8).

Defendant also had a “no-fault absenteeism policy,” which governed employee absences and delineated the consequences for excessive absences (SMF ¶ 13). The absenteeism policy described what types of absences were considered excused and what absences were considered unexcused and subject to progressive discipline ( id. ¶ 14). An FMLA qualifying event was considered an “excused absence” and not subject to discipline ( id. ¶ 15). Absences that were due to sickness (“with or without Dr. note—non-qualifying event”) or “day care concerns” were among the absences Defendant's absenteeism policy defined as “unexcused absences” subject to progressive discipline ( id. ¶ 16).

The progressive discipline for unexcused absences under Defendant's absenteeism policy was as follows:

Avon will allow six (6) no fault points under its system. Points will be given for occurrences which result from an employee being absent for all or part of their work hours. Employees missing time from 1 minute to 3.9 hours will be given .5 points. Employees missing time 4.0 hours or greater will be given 1 points.

The points will be considered on a rolling 12 month period. Employees that exceed the 6 points will receive counseling steps as follows:

7 points—verbal warning

8 points—written warning

9 points—3 day suspension without pay

10 points—termination

(SMF ¶ 17). Plaintiff admits that she was aware of and familiar with both the absenteeism policy and the FMLA policy ( id. ¶ 18). Indeed, she also admits that during the course of her employment, she was disciplined on numerous occasions for unexcused absences pursuant to the absenteeism policy ( id. ¶¶ 31–44).

Defendant contends that as of April 19, 2010, after taking leave for pregnancy complications and the birth of her daughter, Plaintiff had exhausted her 12 workweeks (60 workdays) of FMLA leave for that time period, an assertion Plaintiff disputes (SMF ¶¶ 22–24). According to Plaintiff, [i]t is not clear from the record that the leaves listed by defendant are properly chargeable as FMLA leave as there are no documents reflecting that all of this leave was properly designated as required by the Act ( id. ¶ 24).

On January 25, 2011, Plaintiff's supervisor, Harold Anderson, provided Plaintiff with a 3–day suspension due to Plaintiff's accumulation of 9 points under its absenteeism policy (SMF ¶ 40). Plaintiff was to work the rest of the day on January 25, 2011 and begin her suspension on January 26, 2011 ( id. ¶ 41). That same day,2 Anderson also informed Plaintiff that if she incurred any additional unexcused absences under the absenteeism policy, then her employment would be terminated ( id. ¶ 42).

After receiving a telephone call from her daycare provider that her daughter was sick, Plaintiff left work early (SMF ¶ 43). Specifically, Plaintiff left work on January 25, 2011 at 6:00 p.m.—five hours before her shift ended ( id. ¶ 44). The daycare provider informed Plaintiff that her daughter was throwing up and had diarrhea and that she would have to be picked up ( id. ¶ 46). Plaintiff contends that she did not believe leaving work on January 25, 2011 would result in a violation of the attendance policy as she believed it [would] be covered by FMLA” ( id. ¶ 47).

On January 26, 2011, Plaintiff took her daughter to her pediatrician's office, where she was seen by a pediatric nurse practitioner (SMF ¶ 51). Plaintiff states that her daughter was diagnosed with “gastroenteritis” whereas Defendant indicates that Plaintiff's daughter was diagnosed with “the flu” ( id. ¶ 52). The pediatric nurse practitioner who examined Plaintiff's daughter advised Plaintiff to slowly advance her daughter's diet, to monitor her daughter's fluid intake and stools, and to anticipate that the illness would last three to five days (Df. Ex. L, Blackmer Dep. at 35–36). The pediatric nurse practitioner also advised Plaintiff to go to the emergency room if the baby had persistent diarrheastools and vomiting and became progressively more lethargic ( id. at 36). The pediatric nurse practitioner observed that Plaintiff's 18–pound daughter was “a pretty petite little girl [with] a much more narrow window for more significant dehydration” ( id. at 37). According to the pediatric nurse practitioner, dehydration resulting from gastroenteritis is a leading cause of hospital admission for babies and young children ( id. at 36). Plaintiff's daughter was not prescribed any medication, nor was she subsequently admitted to the hospital or any other inpatient care facility (SMF ¶¶ 53–54).

On February 4, 2011, Defendant terminated Plaintiff's employment, allegedly informing Plaintiff that her daughter's flu was not a serious health condition covered under the FMLA and that her employment was therefore being terminated in accordance with its absenteeism policy (SMF ¶¶ 63–64). In contrast, Plaintiff contends that Defendant informed her that she was being terminated “because her pediatrician's office refused to return the medical certification forms to support her requested leave” ( id. ¶ 63).

In July 2011, Plaintiff filed this suit against Defendant in state court, claiming that Defendant's actions violated the FMLA. On August 23, 2011, Defendant removed the case to this Court, citing this Court's federal-question jurisdiction, 28 U.S.C. § 1331 (Dkt 1, Notice of Removal ¶ 2). Following discovery, this Court conducted a Pre–Motion Conference in June 2012, permitting the parties to brief Defendant's proposed dispositive motion. The parties filed their motion papers in September 2012 (Dkts 37–47). Having been recently informed that Voluntary Facilitative Mediation in this case was unsuccessful (Dkt 49), the Court now issues this decision on Defendant's pending motion.

A. Motion Standard

A motion for summary judgment is properly granted “if the movant 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). In considering a motion for summary judgment, the court must draw all reasonable inferences in favor of 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). The central issue is “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Discussion

The FMLA prohibits qualifying employers from “interfer[ing] with, restrain [ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under” the FMLA. 29 U.S.C. § 2615(a)(1). Among these statutory rights is the right of an eligible employee to take up to 12 weeks of leave [b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter.” 29 U.S.C. §§ 2612(a)(1...

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