Humenny v. Genex Corp.

• Decision Date: 08 December 2004
• Docket Number: No. 03-1953.,03-1953.
• Citation: 390 F.3d 901
• Parties: Sandra HUMENNY, Plaintiff-Appellant, v. GENEX CORPORATION, INC.; Carol Valentic, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 901

390 F.3d 901

Sandra HUMENNY, Plaintiff-Appellant, v. GENEX CORPORATION, INC.; Carol Valentic, Defendants-Appellees.

No. 03-1953.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2004.

Decided and Filed: December 8, 2004.

ARGUED: Timothy K. McConaghy, Hardy, Lewis & Page, Birmingham, Michigan, for Appellant. Debra M. McCulloch, Dykema Gossett, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Timothy K. McConaghy, Hardy, Lewis & Page, Birmingham, Michigan, for Appellant. Debra M. McCulloch, Dykema Gossett, Bloomfield Hills, Michigan, Kathleen McCree Lewis, Mary J. Fair-Matthews, Dykema Gossett, Detroit, Michigan, for Appellees.

Before: KENNEDY and GILMAN,

Circuit Judges; HOOD, District Judge.^*

HOOD, District Judge.

Plaintiff-Appellant brought this action against Defendants-Appellees alleging employment discrimination arising from violations of federal and state law. The district court below granted summary judgment in favor of Defendants-Appellees and dismissed all of Plaintiff's claims. Appellant argues that the district court erred in concluding that Appellant had not stated viable claims for FMLA retaliation, gender discrimination, public policy retaliation, and intentional infliction of emotional distress. For the reasons set forth below, we AFFIRM the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Sandra Humenny began her employment with Defendant-Appellee GENEX Corp., Inc. ("GENEX") in July of 1992 as an Area Sales Manager ("ASM") for the midwest region. In her position as ASM, Appellant sold GENEX services directly to GENEX customers and reported to a Regional Sales Manager ("RSM"). In November of 1998, GENEX hired Tom Sebold ("Sebold") as an RSM in the midwest region. The following December, Appellant was promoted to an RSM position with significantly increased compensation. In her new position, Appellant's supervisor was Appellee Carol Valentic ("Valentic"), Regional Vice President of GENEX. Valentic reported directly to the Vice President of GENEX, Delphia Frisch ("Frisch").

Appellees allege that, as early as the fall of 2000, Frisch and Valentic began discussing plans for the reorganization of the midwest region of GENEX and the elimination of one of the RSM positions. Frisch and Valentic claim that, by August and September of 2001, they decided to eliminate one of the RSM positions and replace it with a Regional Account Executive ("RAE") position. Appellees allege that they compared the performances of Sebold and Appellant and decided to retain Sebold in the RSM position and to transfer Appellant to the RAE position. Appellant, however, alleges that she had always performed better than Sebold in the RSM position.

October 2nd to 4th of 2001, GENEX held its annual regional meeting in Chicago, Illinois. Appellant was unable to attend the meeting because of a personal emergency regarding her ailing mother. Following the meeting, Valentic contacted Appellant to express concerns about the performances of two of Appellant's ASMs. During that conversation, Valentic asked Appellant to develop a 30-day plan for each of Appellant's ASMs. Appellant alleges that Valentic told her to either take a full-time unprotected leave or perform her job at 100% including overnight travel, or she would be fired. Appellees contend that Valentic stated only that Appellant should consider taking a leave of absence to care for her ill mother and that Marie Beppel ("Beppel"), Senior Vice President of Human Resources, could discuss with Appellant the available leave options. Appellees further allege that travel had always been a requirement for the job, which Appellant denies.

Appellant alleges that, on November 5, 2001, she overheard a conversation between Valentic and Frisch in which Valentic stated that she could not stand to see Appellant anymore and that Appellant could not continue to disparage the company because of Valentic's response to Appellant's requests for leave. Appellant further states that she heard Valentic ask Frisch whether Frisch was all right with Valentic's "plan." The next day, Valentic called Appellant to her office and informed Appellant that she was being transferred to the RAE position. On November 7, 2004, Appellant asked Valentic for a job description of the RAE position. Appellant alleges that Valentic refused the request and told Appellant that Valentic had serious doubts about working with Appellant.

Appellant accepted the RAE position, and on November 12, 2001, the first day in her new position, Appellant went on sick leave for her own illness. On February 4, 2002, Appellant was informed that her leave would terminate on February 11, 2002. Following termination of her leave period, Appellant submitted a request for an extension, which included medical certification that her doctor would evaluate her ability to work in 30 days. Appellees denied Appellant's request allegedly because the midwest region was already 400 cases below its yearly goal and because GENEX lost $150,000 in revenue in January of 2002. On February 13, 2002, Appellant was terminated effective February 15, 2002. On the effective date of her termination, GENEX offered Appellant a severance package comprised of her 2001 bonus and 37 unused short-term disability days.

Plaintiff-Appellant filed suit in Michigan state court on May 24, 2002, and filed an amended complaint on June 14, 2002. Defendants removed the case to federal district court based upon federal question jurisdiction and moved for summary judgment on all of Appellant's claims. On June 27, 2003, the district court entered an order granting summary judgment in favor of Defendants and dismissing all of Plaintiff's claims with prejudice. Plaintiff then sought this appeal.

II. STANDARD OF REVIEW

A district court's grant of summary judgment is reviewed de novo. Sperle v. Mich. Dep't of Corr., 297 F.3d 483, 490 (6th Cir.2002). The court must construe all reasonable factual 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). To withstand summary judgment, the nonmoving party must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; rather, "there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

A. The FMLA's "Eligible Employee" Requirement

The FMLA excludes from coverage "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50." 29 U.S.C. § 2611(2)(B)(ii). Where a plaintiff does not qualify as an "eligible employee," the court lacks jurisdiction to decide the FMLA case. Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 607 (6th Cir.1998). Plaintiff-Appellant argues that the "eligible employee" requirement should not be applied where an employee brings a retaliation claim under the FMLA rather than merely alleging entitlement to FMLA leave. Appellant concedes that she was not entitled to rights under the FMLA because Defendant-Appellee GENEX employed fewer than 50 employees within 75 miles of Appellant's worksite. Rather, Appellant claims that Appellees demoted and eventually dismissed her for "attempting" to assert rights to which she, in good faith, believed she was entitled under the FMLA. Accordingly, Appellant argues that she should be able to assert a retaliation claim against Appellees.

Appellant notes that both the First and Eleventh Circuits have held that an employee who is not eligible for leave under the FMLA nonetheless may state a claim for FMLA retaliation. However, as the district court correctly concluded, the cases to which Appellant cites for this proposition are not on point. The First and Eleventh Circuit cases held only that a former employee may state a claim for retaliation where the former employer refuses to re-hire the employee for exercising FMLA leave rights while employed. Smith v. BellSouth Telecommunications, Inc., 273 F.3d 1303, 1312-13 (11th Cir.2001); Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 9-11 (1st Cir.1998). In both cases, the plaintiffs qualified as "eligible employees" at the time they took FMLA leave. Smith, 273 F.3d at 1305; Duckworth, 152 F.3d at 3. Appellant in this case never qualified for FMLA leave.

Appellant further argues that the language of the FMLA retaliation provisions and the regulations passed in accordance with the FMLA lend support to her argument. The FMLA retaliation provisions state:

(1) Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.

29 U.S.C. § 2615(a)(1)-(2). Appellant argues that the statute's use of the words "employee" and "individual" indicates that these retaliation provisions apply regardless of whether an employee is eligible for leave under the statute. However, a close reading of the statute reveals that the retaliation provisions prohibit employers from retaliating based on the exercise of a "right" under the statute. The regulations provide similar protection by prohibiting retaliation based on the exercise of "any rights provided by the Act." 29 C.F.R. § 825.220(a)(1). Because Appellant is not an eligible employee, Appellant has never exercised or attempted to exercise any "rights" provided to her by the FMLA.

This court has already held that in an FMLA...