Donald v. Sybra, Inc., 10–2153.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation25 A.D. Cases 1444,44 NDLR P 132,161 Lab.Cas. P 35984,18 Wage & Hour Cas.2d (BNA) 993,667 F.3d 757
Docket NumberNo. 10–2153.,10–2153.
PartiesGwendolyn DONALD, Plaintiff–Appellant, v. SYBRA, INCORPORATED, dba Arby's, Defendant–Appellee.
Decision Date27 February 2012

161 Lab.Cas. P 35,984
18 Wage & Hour Cas.2d (BNA) 993
25 A.D. Cases 1444
44 NDLR P 132
667 F.3d 757

Gwendolyn DONALD, Plaintiff–Appellant,
SYBRA, INCORPORATED, dba Arby's, Defendant–Appellee.

No. 10–2153.

United States Court of Appeals, Sixth Circuit.

Jan. 17, 2012.Rehearing and Rehearing En Banc Denied Feb. 27, 2012.

[667 F.3d 759]

ON BRIEF: Mandel I. Allweil, Hurlburt, Tsiros & Allweil P.C., Saginaw, Michigan, for Appellant. E. Jason Blankenship, McDonald Hopkins PLC, Bloomfield Hills, Michigan, Douglas B. Schnee, McDonald Hopkins LLC, Cleveland, Ohio, for Appellee.Before: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.

COLE, Circuit Judge.

Gwendolyn Donald worked for Sybra LLC (“Sybra”) at its Arby's restaurants for over two years as an assistant manager. During this period, Donald suffered a number of health problems, forcing her to miss a substantial amount of work. In February of 2008, Sybra terminated Donald when it suspected that Donald entered customer orders improperly in order to steal cash from her register. Donald sued Sybra, alleging various theories of discrimination and retaliation. The district court granted summary judgment in favor of Sybra, which Donald now appeals. We AFFIRM.


Sybra hired Donald in late 2005 as an assistant manager at its Arby's restaurant on Holland Avenue in Saginaw, Michigan. Shortly thereafter, Donald began experiencing a number of serious health problems that required her to take leave from her position. In 2006, she missed a week of work for gallbladder surgery, and in 2007 she missed approximately eight weeks of work to receive treatment for ovarian cysts and renal stones. Although the record is unclear as to whether the 2006 absence was under the Family and Medical Leave Act (“FMLA”), there is no dispute that the 2007 absence was.

Donald returned from her 2007 treatment on September 15, 2007, and was subsequently transferred to a different Saginaw store, this time on State Street. There, Donald worked under Kyle Plum, the store manager, Margo Houston–Barocko, the district partner and Plum's supervisor, and Eric Ballance, a senior director of operations and Houston–Barocko's supervisor. Ballance visited the State Street store only a few times a year, though Houston–Barocko was there as often as twice per week. Donald alleges that while working next to each other in the store, Houston–Barocko, cognizant of Donald's health problems, said that Donald “should be disabled” like Houston–Barocko's husband. Donald does not remember when this conversation took place, though she remembers that it occurred sometime between October 2007 and January 2008. Houston–Barocko denies making the statement.

On February 14, 2008, Kyle Plum, Donald's supervisor, examined a number of receipts from Donald's drive-in window drawer showing irregularities in how customers were charged. The receipts showed that orders were taken at full price, customers were given a full price total, but that the orders were then changed to a discounted price. Plum stated that he discovered that Donald's drawer was $4.00 or $5.00 short. After notifying his supervisors, Plum donned a headset to listen in on Donald's orders over the next few days. After comparing the orders Donald took to the figures entered into her register, Plum suspected that Donald improperly discounted the orders and pocketed

[667 F.3d 760]

the difference. Plum shared his information with Houston–Barocko.

Donald received treatment for ongoing pain and renal stones on her regularly scheduled days off on February 25 and 26, 2008. The treatment caused Donald to experience extreme pain. On February 26, Donald called Plum to notify him that she would not be able to return to work until February 29, but provided neither formal written notice nor a request for FMLA leave. Upon her return on February 29, Plum, Houston–Barocko, and Ballance confronted Donald about the shortage in her drawer and their investigation. Donald denied all allegations of theft, and refused to sign a written form acknowledging the theft. Her employment was then terminated, though Sybra did not object to her receipt of unemployment compensation.

After her termination, Donald filed a complaint against Sybra on the company's grievance hotline. A company representative contacted Donald and, in addition to providing three weeks of paid leave, offered her employment at one of the Detroit stores. Donald declined the offer. Donald then filed a complaint with the EEOC and Michigan Department of Civil Rights, which appears to have been unsuccessful.

On June 11, 2009, Donald filed a complaint in the district court, alleging that Sybra's termination of her employment violated her civil rights. Specifically, Donald alleged that Sybra fired her because of her serious medical conditions, and that such an action violates the FMLA, the Americans with Disabilities Act (“ADA”), and Michigan's Persons with Disabilities Civil Rights Act (“PWDCRA”). On May 28, 2010, Sybra moved for summary judgment, which the district court granted on August 11, 2010.

The district court noted that while there are “substantial questions” concerning whether Donald established a prima facie case for FMLA interference and retaliation, it was unnecessary to discuss those issues because Donald failed to demonstrate that Sybra's justification for her termination was pretextual. The district court also denied relief on the ADA and PWDCRA claims, finding that there was “insufficient evidence connecting the alleged disability to the decision to end her employment....” Donald filed a timely notice of appeal.

A. Standard of Review

We review the district court's grant of summary judgment de novo. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 894–95 (6th Cir.2004). Summary judgment is proper when there is no genuine issue of material fact and the moving party, Sybra, is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Sybra bears the initial burden of demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Sybra may satisfy this burden by offering affirmative evidence that negates an element of Donald's claim or, as it attempts to do here, by pointing to an absence of evidence to support the non-moving party's claim. If Sybra satisfies its burden, Donald must then set forth the specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In evaluating the evidence, we draw all reasonable inferences in favor of Donald. Blackmore, 390 F.3d at 895 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A mere scintilla of

[667 F.3d 761]

evidence in support of Donald's position will be insufficient for her claim to survive summary judgment. Rather, there must be enough evidence such that the jury could reasonably find for her. Anderson, 477 U.S. at 251, 106 S.Ct. 2505.

B. FMLA Claims

Donald argues that Sybra's actions give rise to two causes of action under the FMLA. Donald first argues that because she was terminated while on leave, Sybra violated 29 U.S.C. § 2615(a)(1), which makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any FMLA provision. We have previously held that “[i]f an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled.” Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir.2007). To establish a prima facie case of FMLA interference, Donald must show that

(1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled.

Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir.2006) (citing Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir.2005)).

Donald next argues that Sybra retaliated against her for taking FMLA leave. The FMLA prohibits...

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