Johnson v. Kmart

• Decision Date: 07 January 2009
• Docket Number: Case No. 07-14393.
• Citation: 596 F.Supp.2d 1045
• Parties: Edward JOHNSON, Plaintiff, v. KMART, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

596 F.Supp.2d 1045

Edward JOHNSON, Plaintiff, v. KMART, et al., Defendants.

Civil Case No. 07-14393.

United States District Court, E.D. Michigan, Southern Division.

January 7, 2009.

COPYRIGHT MATERIAL OMITTED

Joseph A. Golden, Kevin M. Carlson, Pitt, McGehee, Royal Oak, MI, for Plaintiff.

Barbara E. Buchanan, Terrence J. Miglio, Keller Thoma, Detroit, MI, for Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STEPHEN J. MURPHY, III, District Judge.

Before the Court is the defendants' motion for summary judgment, filed on August 8, 2008. On December. 9, 2008, the Court held a hearing on the motion for summary judgment. Having reviewed the motion for summary judgment and the relevant portions of the record, the Court denies the defendants' motion for summary judgment for the reasons stated below.

BACKGROUND

This case involves a claim for employment discrimination and retaliation by an employee against his former employer for termination in violation of the Family Medical Leave Act, 29 U.S.C. § 2615(a)(2) ("FMLA"). The plaintiff Edward Johnson was formerly employed by the defendant Kmart/Sears Holding Corporation ("Kmart") as a loss prevention associate. Kmart used a six-point infraction-based system for monitoring and punishing tardiness and absenteeism by its employees. Under the system, an employee would receive one infraction point for each instance of unexcused absence from work and ½ point for each incident of tardiness. An infraction point remained on an employee's attendance record for six months, and Kmart reserved the right to terminate employees who accrued six infraction points in any six-month period. The plaintiff Johnson had received and signed a copy of the policy when he began work. Prior to the events of Saturday, February 17, 2007, Johnson had accrued 5½ infraction points.

On Saturday, February 17, 2007, Johnson was scheduled to work from 2:00 p.m. until the store's closing at 10:00 p.m. At 1:30 p.m., as he was preparing to go to work, Johnson received a call from his wife's cousin, Holly Abernathy, who was watching the Johnson children. Abernathy told Johnson and his wife, Gloria Johnson, that their six-year-old son Eddie had been hurt by Abernathy's dog; Eddie's eye had been cut by the dog and was bleeding. Edward Johnson dep. 81-83.

Pursuant to a Kmart policy regarding unexpected absences, Johnson called the store and notified assistant store manager William Talley that Johnson had to drive his son to the emergency room, that he would not be able to make his shift, but that he would try to get to work later if he was done at the hospital in time. Id.; Talley memo of March 8, 2007 (Exh. 7 to Plaintiffs Response to Summary Judgment Motion). Talley told Johnson not to worry about it, but to "get your son to the hospital." Edward Johnson dep. 86.

The Johnsons first took Eddie to Clarkston Ambulatory Center, which was close to the Abernathy house, but the ambulatory center refused to see Eddie because the Johnsons did not have Eddie's insurance card with them. Id. at 84. The Johnsons then took Eddie to the emergency room at St. Joseph Mercy Hospital in Pontiac, Michigan. Id. The doctors there diagnosed Eddie with a "left subconjunctival hemorrhage" and wrote that he appeared to have a "ruptured globe in the medial portion of the eye." Hospital records (Exh. 8 to Plaintiffs Response to Summary Judgment Motion). The St. Joseph Mercy doctors felt that Eddie needed to be seen immediately by an ophthalmologist at Beaumont Hospital, in Royal Oak, Michigan. Eddie was then driven to Beaumont hospital by his parents where he was seen by the ophthalmology resident at Beaumont. The consultation form for the ophthalmologist indicates that Eddie was being seen because of a possible ruptured globe. Beaumont Medical Records (Exh. 9 to Plaintiffs Response to Summary Judgment Motion). The diagnosis of the ophthalmology resident was that Eddie had a subconjunctival laceration (a cut on the white portion of the eye) and a subconjunctival hemorrhage ("a collection of blood on the white portion of his eye surrounding the laceration"). Id. The ophthalmologist concluded that Eddie did not have a ruptured globe. Id. The ophthalmologist gave Eddie an eyepatch and told the Johnson to keep the eyepatch on Eddie for 24 hours except when they were administering his antibiotics. Gloria Johnson dep. 29-30. The ophthalmologist discharged Eddie with instructions for him to return for a follow-up appointment, and for his parents to call sooner if he showed a decrease in visual acuity, or an increase in pain or any spots, curtains, or flashes. Id. Eddie was discharged from the hospital and the Johnsons returned home at approximately 8:00 p.m. that night. Johnson did not report back to work for the final two hours of his shift ending at 10:00 p.m.

The following day, Sunday, February 18, Johnson worked the entire day as he was scheduled to do. Edward Johnson dep. 86-87. Johnson testified that he spoke to the store HR manager Kim Matthews about taking his son to the emergency room the previous day and that he showed her pictures of his son's eye injury. Id. at 87. Johnson also told Matthews that he had paperwork from the hospital if she needed it, but Matthews told Johnson "don't worry about it." Id. at 87-90. Matthews testified that Johnson told her he had a doctor's note, but that she told him to bring it in the next time he worked. Matthews dep. 90. She testified that she never followed up with him about it because that was management's responsibility. Id. Jeanette Streetman, the store "coach", or manager, testified that Matthews told her that Matthews had requested documentation from Johnson because he said he was in the emergency room, and that Matthews had waited for the documentation but never received it. Streetman dep. 59. Apparently, no one from Kmart notified Johnson that his absence might be protected by the FMLA. Edward Johnson dep. 142.

Matthews notified Streetman that Johnson's absence on February 17 was his sixth point under the Kmart absence control policy. Matthews dep. 33, 39; Streetman dep. 59. According to Matthews, Streetman questioned whether Johnson should receive an infraction point because "he said his son got bit," but Streetman testified that she never suggested or acted upon the possibility that Johnson's absence was protected by the FMLA. Matthews dep. 34; Streetman dep. 67.

Streetman contacted Joe McCreery, the Kmart district "coach" and asked his approval of the decision to fire Johnson for his sixth infraction. Streetman never told McCreery the reason Johnson had given for his absence and never suggested to McCreery that Johnson's absence may have been covered by FMLA, and McCreery never asked. Streetman dep. 67. When McCreery asked Streetman "if the infraction was clean, if there were any other circumstances to the infraction," Streetman answered "no." McCreery dep. 31.

Streetman terminated Johnson on Friday, February 22, 2007 for his absence the previous Saturday. Edward Johnson dep. 88. Streetman told Johnson that the reason for 4 his termination was his violation of Kmart's absence control policy. Id. After being informed of the decision, Johnson asked whether she was doing so "even though it was because I had to rush my son to the hospital." Id. Johnson also told Streetman that he had the paperwork from the hospital if she needed to see it, but Streetman told him that she did not need to see the paperwork and "it doesn't matter, I don't care." Id.

Subsequently, Johnson brought this suit against the defendants, alleging that he was terminated in violation of the FMLA.

LEGAL STANDARD

The defendants filed a motion for summary judgment pursuant to the Federal Rules of Civil Procedure. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue of material fact regarding the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Martin v. Ohio Turnpike Comm'n, 968 F.2d 606, 608 (6th Cir.1992).

In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The nonmoving party, however, must do more than raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). "The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995).

Here, the defendants have filed a motion for summary judgment. Accordingly, the Court views the facts and resulting inferences in the light most favorable to the nonmoving plaintiff Edward Johnson.

ANALYSIS

The defendants have moved for summary judgment on three grounds: first, that the injury to Johnson's son was not a "serious health condition" within the meaning of the FMLA; second, that even if the injury was a "serious health condition," Johnson's failure to show up for the final two hours of his shift was a legitimate, nondiscriminatory reason for the...