Dortman v. Aco Hardware, Inc., No. 04-CV-71858-DT.

CourtU.S. District Court — Eastern District of Michigan
Writing for the CourtRosen
Citation405 F.Supp.2d 812
PartiesJodie DORTMAN, Plaintiff, v. ACO HARDWARE, INC., Defendant.
Decision Date14 June 2005
Docket NumberNo. 04-CV-71858-DT.
405 F.Supp.2d 812
Jodie DORTMAN, Plaintiff,
v.
ACO HARDWARE, INC., Defendant.
No. 04-CV-71858-DT.
United States District Court, E.D. Michigan, Southern Division.
June 14, 2005.

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David S. Del Boccio (Not Admitted), Christopher S.C. Webber, Webber & Del-Boccio, St. Clair Shores, MI, for Jodie Dortman, Plaintiff.

Linda G. Burwell, Allison C. Reuter, Amy L. Stirling, Nemeth Burwell (Detroit), Detroit, MI, for ACO Hardware, Incorporated, Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROSEN, District Judge.


I. INTRODUCTION

This FMLA/Workers' Compensation retaliation action is presently before the Court on Defendant ACO Hardware, Inc.'s Motion for Summary Judgment. Plaintiff has responded to Defendant's Motion to which Response Defendant has replied. Having reviewed and considered the parties' briefs, supporting documents and the entire record of this matter, and having heard the oral arguments of counsel on June 9, 2005, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

Plaintiff Jodie Dortman is a former employee of Defendant ACO Hardware, Inc. ("ACO"). ACO operates 64 retail hardware stores throughout Southeast Michigan. Plaintiff was employed by ACO for 17 years prior to the termination of her employment in December 2003. Plaintiff worked at ACO Store # 129 in Port Huron from 1987 until that store was closed in a company-wide consolidation in February 1997. Plaintiff then voluntarily transferred to Store # 112, which was also located in Port Huron, where she worked until her termination.

ACO Hardware has a Family and Medical Leave of Absence policy which is set forth in the Company's Employee Handbook. See Defendant's Ex. 1. The policy states that an employee may take "up to twelve weeks of unpaid leave during any 12 month period, measured backward from the date that the employee uses any FMLA leave." Id. at p. 52 and Appendix A at p. 71. As explained in Appendix A of the Employee Handbook,

ACO will measure the twelve-month period as a "rolling" twelve-month period measured backward from the date of the requesting employee's leave. Each time an employee takes leave, ACO will compute the amount of leave the employee has taken under this policy and subtract it from the twelve weeks of available leave, and the balance remaining is the amount the employee is entitled to take at that time.

Id. at p. 71.

Plaintiff signed a Receipt acknowledging her receipt of the Employee Handbook, and Plaintiff testified in her deposition that she understood the Company's FMLA policy. [See Plaintiff's Dep., p. 109.]

From 2000 through 2003, Plaintiff had a variety of health problems and she took

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FMLA medical leave on six occasions during this period. On each occasion that Plaintiff requested leave, ACO granted the leave and gave Plaintiff the "U.S. Department of Labor Employer Response to Employee Request for Family or Medical Leave" form with all of the statutorily-required information. See Defendant's Exs. 4-9.1 Plaintiff's medical leaves were as follows:

1. Leave for Arthroscopic Knee Surgery — 9/28/00-10/17/00. Plaintiff requested and was granted FMLA leave for arthroscopic surgery of her left knee. See Defendant's Ex. 4. This leave was from September 20, 2000 through October 17, 2000. Plaintiff testified that she had no problems returning to work after this leave. [Plaintiff's Dep. p. 114.]

2. Leave for Gallbladder Surgery — 6/14/01 through 8/19/01. Plaintiff again took FMLA leave on June 14, 2001. See Defendant's Ex. 5. She returned without incident on August 19, 2001. [Plaintiff's Dep., pp. 114-15.]

3. Leave for Partial Hysterectomy — 10/22/01 through 12/3/01. Plaintiff again applied for FMLA leave in October 2001 for a partial hysterectomy. See Defendant's Ex. 6. This leave lasted until December 3, 2001. Id. Plaintiff returned to work after this leave with a temporary ten-pound weight restriction, which was accommodated by ACO through its conclusion in early January 2002. [Plaintiff's Dep. pp. 116-17.]

4. Leave for Hemorrhoid Surgery — 1/31/03 through 2/17/03. A year after returning from her leave for her partial hysterectomy, Plaintiff again requested and was granted FMLA leave from January 31, 2003 through February 17, 2003 for hemorrhoid surgery. See Defendant's Ex. 7. (Although Plaintiff originally returned to work the Monday following her surgery, she obtained a note from her doctor stating that she was unable to work for the next two weeks because she said she could not lift anything and had to take sitz baths several times per day. [Plaintiff's Dep., p. 122.])

5. Leave to Recover from On-the-Job Injury — 3/19/03 through 4/21/03. On March 9, 2003, Plaintiff suffered an on-the-job injury (diagnosed as a "contusion/sprain") when some shelves in a storage room fell on her right arm. Plaintiff filed a workers' compensation claim which ACO did not dispute and the company paid all of her medical and wage benefits as a result of this injury. As with her previous leaves, ACO issued Plaintiff an "Employer Response to Employee Request for Family or Medical Leave" form, which clearly advised Plaintiff that "The requested leave will be counted against your annual FMLA leave entitlement." See Defendant's Ex. 8, ¶ 2. Although Plaintiff originally had requested only one week of leave following her on-the-job injury, she testified that the injury continued to be very painful, and as a consequence, she chose to discontinue the physical therapy prescribed by her doctor, and remained on leave until April 21, 2003. [Plaintiff's Dep. pp. 53-54.]2

Plaintiff claims that when she returned from her worker's compensation leave on April 21, 2003, she was "demoted" because

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she was put in the position of Head Cashier instead of Department Manager of Tools and Hardware. Id. at 79. However, the certificate provided to ACO by Plaintiff's treating physician releasing Plaintiff to return to work placed a weight limitation restriction on her — Plaintiff was not to lift anything heavier than five pounds. See Defendant's Ex. 12. Plaintiff could not have performed any of the duties of a Department Manager with a five-pound lifting restriction, except for operating the cash register. See Affidavit of Store Manager Paul Bartle, ¶¶ 4-5. Plaintiff testified that as Department Manager, she regularly carried 60-pound bags of cement and sand, 20 to 40-pound bags of soil, 50-pound bags of marble chips and boxes of paint cans weighing 62 pounds. [Plaintiff's Dep., pp. 83-84.] Mr. Bartle testified that with a five-pound restriction, Plaintiff would be unable to carry or mix even one can of paint, which weighs seven pounds. [Bartle Aff., ¶ 5.]

Furthermore, Plaintiff admits that she suffered no loss of title, pay or benefits as a result of being assigned to the Head Cashier position. [Plaintiff's Dep., pp. 80-81. See also, Bartle Aff., ¶ 4.] In her deposition, Plaintiff testified that, although there were different responsibilities as a Head Cashier, the level of responsibility was "about equal" to that of a Department Manager. Id. at p. 80.

6. Surgery to Remove Ruptured Ovaries — 8/27/03 through 12/1/03. Four months after returning to work after her on-the-job injury, Plaintiff requested an open-ended FMLA leave of absence on August 26, 2003 for removal of her ovaries. See Defendant's Ex. 9. ACO's Employer Response form granting this leave request on August 26, 2003 advised Plaintiff in large print: "NOTE: You have 26 days of FMLA remaining." See id., ¶ 4. Plaintiff admits she received this Employer Response form, but does not remember if she noticed this notification. [Plaintiff's Dep., p. 132.]

Plaintiff was not released by her physician to return to work until December 1, 2003. See Defendant's Ex. 10. However, Plaintiff's annual FMLA 12-week leave time allotment expired on September 22, 2003. Plaintiff did not communicate with her Store Manager, Paul Bartle, at any time during this leave until November 2003, when Plaintiff called Mr. Bartle asking about a schedule to return to work. See Bartle Affidavit, Defendant's Ex. 11, ¶ 6. Bartle testified that he was surprised by Plaintiff's phone call so he simply told her to report on December 1, 2003. Id. Bartle stated that he had thought that Plaintiff had taken more than 12 weeks of leave time and confirmed that belief with ACO's Human Resources Director. Id. at ¶ 7-8. Human Resources also confirmed that Bartle was not required under the FMLA to reinstate Plaintiff. Id. Bartle testified that because it was the holiday season, he had hired additional cashiers and he did not want to terminate any of them, which he would have to do to reinstate Plaintiff. Id. But, he did not want to tell Plaintiff this over the phone and, instead, decided to wait until December 1, 2003 when she reported to work. Id.

When Plaintiff reported on December 1, 2003, Bartle informed her that she was being laid off. Id. Eight days after her lay-off from ACO, Plaintiff obtained comparable employment at Lowe's where she apparently remains employed.3 Plaintiff testified that her duties, pay and benefits are nearly equivalent to her previous position at ACO. [Plaintiff's Dep. pp. 11-13.]

On March 31, 2004, Plaintiff initiated the instant action in St. Clair County Circuit

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Court. In her Complaint, Plaintiff alleges three claims: In Count I, Plaintiff alleges a claim of "Retaliation in Violation of Public Policy for filing a Workers' Compensation Claim." Plaintiff's Count II is similarly phrased as "Retaliatory Discharge in Violation of Public Policy for Exercising Family Medical Leave Act." And in Count III, Plaintiff alleges a claim of slander. This last claim is predicated upon Plaintiff's allegation that the Second Assistant Manager at store # 112, Melody Pesta, allegedly told other unidentified ACO...

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12 practice notes
  • Davis v. Lausd Personnel Com'n, No. B188435.
    • United States
    • California Court of Appeals
    • June 28, 2007
    ...F.3d 442, 451; Bragg v. Navistar Intern. Transp. Corp. (7th Cir.1998) 164 F.3d 373, 376; Dortman v. ACO Hardware, Inc. (E.D.Mich.2005) 405 F.Supp.2d 812, 821; Acevedo Martinez v. Coatings, Inc. and Co. (D.P.R.2003) 286 F.Supp.2d 107, 116-117.) 62 Cal.Rptr.3d 75 From November 2001 to Februar......
  • Henderson v. Walled Lake Consol. Schools, No. 05-1814.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 16, 2006
    ...was made while he was engaged in his employer's work and was acting within the scope of his authority. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 825-26 (E.D.Mich. 2005). An employer is not liable for a defamatory statement, even though made in the workplace, if the statement was not......
  • Brown v. Oakland Cnty., Case No. 14-cv-13159
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 4, 2015
    ...plaintiff's assertion of his right to workers' compensation benefits and the adverse employment action. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 822 (E.D. Mich. 2005) (citing Chiles v. Machine Shop, Inc., 238 Mich. App. 462, 470, 606 N.W.2d 398 (1999)).Page 27 "[W]hen a plaintiff a......
  • Vise v. Packaging, File No. 1:10–CV–582.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 20, 2011
    ...retaliation claims are analyzed under the McDonnell Douglas/Burdine5 burden-shifting framework. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 822 (E.D.Mich.2005) (citing Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 470, 606 N.W.2d 398 (1999)). Pursuant to this framework, a plaintiff......
  • Request a trial to view additional results
12 cases
  • Davis v. Lausd Personnel Com'n, No. B188435.
    • United States
    • California Court of Appeals
    • June 28, 2007
    ...F.3d 442, 451; Bragg v. Navistar Intern. Transp. Corp. (7th Cir.1998) 164 F.3d 373, 376; Dortman v. ACO Hardware, Inc. (E.D.Mich.2005) 405 F.Supp.2d 812, 821; Acevedo Martinez v. Coatings, Inc. and Co. (D.P.R.2003) 286 F.Supp.2d 107, 116-117.) 62 Cal.Rptr.3d 75 From November 2001 to Februar......
  • Henderson v. Walled Lake Consol. Schools, No. 05-1814.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 16, 2006
    ...was made while he was engaged in his employer's work and was acting within the scope of his authority. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 825-26 (E.D.Mich. 2005). An employer is not liable for a defamatory statement, even though made in the workplace, if the statement was not......
  • Brown v. Oakland Cnty., Case No. 14-cv-13159
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 4, 2015
    ...plaintiff's assertion of his right to workers' compensation benefits and the adverse employment action. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 822 (E.D. Mich. 2005) (citing Chiles v. Machine Shop, Inc., 238 Mich. App. 462, 470, 606 N.W.2d 398 (1999)).Page 27 "[W]hen a plaintiff a......
  • Vise v. Packaging, File No. 1:10–CV–582.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • June 20, 2011
    ...retaliation claims are analyzed under the McDonnell Douglas/Burdine5 burden-shifting framework. Dortman v. ACO Hardware, Inc., 405 F.Supp.2d 812, 822 (E.D.Mich.2005) (citing Chiles v. Machine Shop, Inc., 238 Mich.App. 462, 470, 606 N.W.2d 398 (1999)). Pursuant to this framework, a plaintiff......
  • Request a trial to view additional results

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