Gecewicz v. Henry Ford Macomb Hosp. Corp..
| Decision Date | 28 December 2010 |
| Docket Number | Case No. 09–14013. |
| Citation | 760 F.Supp.2d 732 |
| Parties | Janice GECEWICZ, Plaintiff,v.HENRY FORD MACOMB HOSPITAL CORP., Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
Eric I. Frankie, Law Office of Eric I. Frankie, James B. Rasor, Rasor Law Firm, Royal Oak, MI, for Plaintiff.
Kathleen M. Gatti, Linda G. Burwell, Nemeth Burwell, Detroit, MI, for Defendant.
The plaintiff filed a complaint alleging three causes of action that arose from her termination from employment by defendant Henry Ford Macomb Hospital Corporation (Ford Hospital) on June 8, 2008. Before the Court is the defendant's motion for summary judgment, which attacks all of the plaintiff's claims. The plaintiff's response does not address causes of action other than her claim brought under the Americans with Disabilities Act (ADA). The Court heard oral argument on the motion on December 21, 2010, at which the plaintiff acknowledged that she was not pursuing any claims other than liability based on a violation of the ADA on the theory that the defendant regarded the plaintiff as having a disability. The Court now finds that the facts offered by the plaintiff do not establish all the elements of a claim under the ADA, and she has abandoned her other claims. Therefore, the Court will grant the defendant's motion for summary judgment and dismiss the complaint. The defendant has filed other motions to dismiss based on alleged discovery abuses. Those motions will be denied as moot.
The plaintiff was hired as an at-will employee by St. Joseph Hospital in Macomb County, Michigan in April of 1998. St. Joseph Hospital apparently was acquired sometime thereafter by the Henry Ford Hospital System, and the plaintiff continued to work for the new entity. She first worked in the environmental services department but was transferred later to the sterile processing department, where she was employed as a Sterile Processing Technician until she was terminated, allegedly for excessive absence from work. As a Sterile Processing Technician, the plaintiff was responsible for sterilizing surgical instruments and preparing and delivering surgical trays and carts. Her supervisor was Carolyn Rogers, the clinical manager of the Sterile Processing department, who assigned the plaintiff to the midnight shift.
The defendant maintained a policy allowing employees to take a limited amount of time off work for vacations, illnesses, and personal reasons, provided prior arrangements were made with a supervisor. The defendant also maintained and enforced an attendance policy that discouraged—and eventually penalized—unscheduled time off work.
As a full-time employee, the plaintiff accrued the equivalent of 30 days of combined time off per year. Under the attendance policy, a scheduled absence was defined as one that was requested and approved in accordance with the department's policy; an unscheduled absence was one that had not been approved in advance. If an employee did not show up to work and call within the amount of time designated by the department guidelines, the employee accrued a “No Call/No Show.” Any unscheduled absence was designated an “occurrence” in the defendant's guidelines. A no call/no show was counted as three occurrences. For a full time employee, the defendant tolerated up to eight unscheduled absences in a rolling twelve-month period. However, after seven occurrences, the employee received a written warning. The policy stated that an employee could be terminated once she reached nine occurrences.
The record in this case discloses that the plaintiff was absent from work on a number of occasions over the years of her employment with the defendant (or its predecessor) because she needed a variety of surgical procedures. For instance, the plaintiff had a hysterectomy, a birch procedure to correct a bladder tilt, a tibial osteotomy in 1998, knee surgeries on both knees sometime in 1994 and 2006; gastric bypass surgery around 2004; bowel obstruction surgery around 2007–2008; and bilateral carpal tunnel surgery in 2007. The plaintiff further alleges that she was diagnosed with an incisional hernia in 2008 prior to her termination. Until the present instance, she was not disciplined for excessive absences.
The plaintiff obtained permission for these work absences over the years from Carolyn Rogers, and for some of the periods the defendant approved leave under the Family and Medical Leave Act (FMLA). Rogers was aware of the plaintiff's surgical history. The parties do not dispute that Rogers considered the plaintiff a good worker when she was present at work. But the plaintiff testified that she thought Rogers viewed her multiple surgeries as some sort of disability. The plaintiff testified “that Carolyn thought [she] had is ... too many surgeries.” Def.'s Mot. Summ. J., Exhibit 3, Gecewicz dep. at 203. Rogers allegedly told the plaintiff that she “needs to stop having so many surgeries” and that she needed “to take better care of herself” because her “attendance [was] getting jeopardized.” Id. at 55. The plaintiff contends that Rogers made comments such as “You've had a lot of surgeries for one person” and “That's a very risky surgery” in reference to the gastric bypass procedure. Id. at 192. These comments, however, were made in 2002 and 2003.
The plaintiff's current difficulties began in 2007 when she again started accruing unscheduled absences. In February 2008, she was issued a written warning that she had accrued seven occurrences and would be considered for release from employment at nine occurrences. No one disputes that the warning complied with the defendant's attendance policy or contends that it was issued inappropriately.
On February 26, 2008, the plaintiff was issued a written warning that she had accrued seven occurrences. On March 28, 2008 the plaintiff met with Carolyn Rogers for a performance evaluation. Rogers discussed with the plaintiff her need to improve her attendance as to tardiness and absences. Despite this discussion, the plaintiff accrued another unscheduled absence less than two weeks later on April 10, 2008. Apparently, some of her prior occurrences had fallen outside the rolling twelve-month period since her February warning, because she was issued another written warning in May of 2008 that she had accrued seven occurrences. The plaintiff's absences were medically related. Nonetheless, neither side disputes that the plaintiff had accrued seven occurrences as of May 1, 2008.
In May 2008, the plaintiff requested time off from Carolyn Rogers to attend her son's wedding. She was granted time off for May 8, 9, and 12. These absences did not result in an occurrence because they were approved ahead of time.
But on May 22, 2008, the plaintiff failed to show up to work. She was to begin her shift at 10:00 p.m. Rogers testified that the plaintiff called that evening at 10:00 p.m. to say she would be an hour late, but the plaintiff never reported to work that day. The failure to come to work on May 22 resulted in a “no call/no show” for that date, which counted for three occurrences under the attendance policy. The plaintiff's occurrence tally then was ten, which subjected her to termination.
The plaintiff raises a factual issue about this last event. She contends that she had obtained permission to miss work on May 22, thereby avoiding the no call/no show designation, and her absence should have counted as only one occurrence, totaling eight for the period. The plaintiff testified that she had followed the procedure for requesting time off by filling out an old St. Joseph Hospital form, which Carolyn Rogers would sign if the time off was approved and post it on the door in the employees' locker room. The plaintiff contends that she received the approved form and kept it in her locker. She no longer has it, she explains, because she was not allowed to retrieve her belongings for several days after she was fired, and the form was not among her things when the locker's contents were mailed to her.
There is confusion on this point in the record, however. The plaintiff admits to calling in that night but states that her purpose was to apologize to her co-worker, Holly, for not coming in to work. The plaintiff also informed Holly that she had time off to cover this absence and to “relay to Vaughn so he doesn't expect [her] to come in.” Pl.'s Mot., Ex. A, Gecewicz dep. at 66–67. In addition, however, the plaintiff testified later in her deposition that she may not have requested an approved absence for May 22:
Def.'s Mot. Summ. J., Ex. 3, Gecewicz dep. at 211.
Aside from this occurrence, the defendant alleges that the plaintiff also missed work on June 9 and 10, 2008. However, the plaintiff testified that her last day of work was June 6, 2008 pending a meeting with A.J. Evans, a human resources officer, and Carolyn Rogers.
After the plaintiff's no show/no call on May 22, 2008, Rogers called Evans and explained that the plaintiff was over the nine-occurrence limit. They both decided to discharge her together, but they could not mutually agree on a time to meet. Eventually, one of them called the plaintiff to set up a formal meeting. The plaintiff says she was not aware of the reason for this meeting, which eventually occurred on June 20, 2008, where the plaintiff was discharged due to excessive number of unscheduled absences.
At the meeting, the plaintiff did not dispute the number of absences she had. She testified that she could not remember the details of the meeting because she was in shock over the announcement of her firing. At the end of this meeting, the...
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Monroe v. Consumers Energy
...not have an impairment, but is regarded as having one. See 42 U.S.C. § 12102(1)(C) and (3)(A)(2009); Gecewicz v Henry Ford Macomb Hosp. Corp., 760 F. Supp. 2d 732, 738 (E.D. Mich. 2010) ("The term 'disability' means, with respect to an individual, being regarded as having such an impairment......