Nichols v. All Points Transport Corp. of Michigan

• Decision Date: 18 March 2005
• Docket Number: No. 04-CV-72232-DT.,04-CV-72232-DT.
• Parties: Yolanda Y. NICHOLS, Plaintiff, v. ALL POINTS TRANSPORT CORPORATION OF MICHIGAN, INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Page 621

364 F.Supp.2d 621

Yolanda Y. NICHOLS, Plaintiff, v. ALL POINTS TRANSPORT CORPORATION OF MICHIGAN, INC., Defendant.

No. 04-CV-72232-DT.

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

March 18, 2005.

William A. Roy, Roy, Shecter, Bloomfield Hills, MI, for Plaintiffs.

Janice G. Hildenbrand, Collins, Eihorn, Southfield, MI, for Defendants.

ORDER DISMISSING PLAINTIFF'S FEDERAL QUESTION CLAIM (COUNT I) FOR LACK OF SUBJECT MATTER JURISDICTION AND REMANDING PLAINTIFF'S STATE LAW CLAIM (COUNT II)

CLELAND, District Judge.

This is an employment discrimination case where Plaintiff Yolanda Nichols brought a civil action against her former employer, Defendant All Points Transportation Corporation of Michigan, Inc. ("All Points"). Plaintiff alleges violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. and asserts a claim for race discrimination under Michigan's Elliot Larson Civil Rights Act ("ELCRA"), Mich. Comp. Laws § 37.2201 et seq. This matter is currently before the court on Defendant's January 31, 2005 "Motion for Summary Judgment." Defendant's motion has been fully briefed and the court finds that a hearing is not required. See E.D. Mich. LR 7.1(e)(2). For the reasons set forth below, the court will grant Defendant's motion.

I. BACKGROUND

Plaintiff, an African American female, was hired by All Points on August 30, 1999 as a Dispatch Assistant. Plaintiff was the only African American out of the eleven individuals working in the All Points office when she was hired. All Points is an intermodal shipping company engaged in transportation of freight, a considerable amount of which relates to rail cargo. During Plaintiff's employ, Jerry Roach served as All Point's Operations Manager and Plaintiff's immediate supervisor. It is undisputed that All Points employed eleven non-driver employees during the years 2002 and 2003; however the parties dispute the total number of drivers engaged by All Points during these calendar years. Plaintiff argues that there were 57 driver/employees employed by All Points. Defendant maintains that its drivers are independent contractors (not employees) and that it did not ever employ more than 50 employees and drivers in any given week during the two calendar years in question.

All Points ended Plaintiff's employment when Mr. Roach fired her on September 12, 2003. According to Defendant, "Plaintiff was terminated for poor attitude at work, lack of cooperation, failure to accept responsibility, yelling at a customer, absenteeism, tardiness, smoking in an unauthorized area and improper use of sick days." (Def.'s Mot. Br. at 3.) Plaintiff maintains that these asserted reasons are a mere pretext for Defendant's discrimination.

Plaintiff filed her two-count complaint in this case in Wayne County Circuit Court on May 20, 2004. Defendant subsequently removed the case to this court pursuant to 28 U.S.C. § 1441, based on federal question jurisdiction.

In her ELCRA race discrimination count, Plaintiff claims that during her employment she was subjected to racial slurs, innuendo and comments by fellow employees and supervisors. (Pl.'s Resp. at p. xvi.) For instance, Defendant acknowledges that one time dispatcher Gina Toffelmeyer remarked, in front of Plaintiff, that one of the drivers had a "nigger truck," but claims that Roach immediately stepped in and corrected Toffelmeyer. (Id.; Roach Dep. at 34-35.) Defendant denies various other alleged discriminatory statements. Plaintiff claims that her September 12, 2003 discharge from employment was improperly based on her race.

With regard to her FMLA count, Plaintiff's daughter suffers from sickle cell anemia. She also alleges that this same "serious health condition" also afflicted her parents. (Pl.'s Compl. at ¶ 37.) Plaintiff claims that she missed time to care for her daughter and parents and that the Defendant interfered with her FMLA rights. She also argues that Defendant interfered with her FMLA rights by counting FMLA-qualified absences from work against her in making its decision to end her employment. See 29 U.S.C. § 2615(a)(1) & (a)(2).

Defendant moves for summary judgment arguing: (1) that Plaintiff's FMLA claims fail because All Points is not an employer as defined by the federal statute and because Plaintiff failed to request qualified FMLA leave; and (2) that Plaintiff has failed to present evidence sufficient to create a genuine material issue of fact as to her claims of race discrimination in violation of ELCRA.

II. STANDARD

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate." Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once a party has moved for summary judgment and has met its burden of production, the non-moving party must present significant probative evidence establishing a genuine issue of material fact in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

Summary judgment is not appropriate when such probative evidence "presents a sufficient disagreement to require submission to a jury." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The existence of some factual dispute, however, does not defeat a properly supported motion for summary judgment; the disputed factual issue must be material. See id. at 252, 106 S.Ct. 2505 ("The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-'whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'"). A fact is "material" for purposes of summary judgment when proof of that fact would have the effect of establishing or refuting an essential element of the claim or a defense advanced by either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).

In considering a motion for summary judgment, the court must view the facts and draw all reasonable inferences from the admissible evidence presented in a manner most favorable to the nonmoving party. Wexler v. White's Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The court does not weigh the evidence presented to determine the truth of the matter, but determines if the evidence creates a genuine issue for trial. Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003).

III. DISCUSSION

A. FMLA Coverage: The Definition of "Employer" Under 29 U.S.C. § 2611

Defendant argues that it is not a covered "employer" as that term is defined by the FMLA. Plaintiff's private cause of action filed under the FMLA is viable only if All Points meets the statutory definition of "employer" under 29 U.S.C. § 2611(4). As the Sixth Circuit has explained:

[T]he FMLA entitles "eligible employees" to take up to twelve weeks of unpaid leave in any twelve-month period for qualifying medical or family reasons. See 29 U.S.C. § 2612(a)(1). The statute ensures that the employee will be restored to the same or an equivalent position upon returning to work. See 29 U.S.C. § 2614(a)(1). The statute [also] creates a private right of action entitling "eligible employees" to seek both equitable relief and money damages "against any employer (including a public agency) in any Federal or State court of competent jurisdiction," 29 U.S.C. § 2617(a)(2), should that employer "interfere with, restrain, or deny the exercise of" FMLA rights, 29 U.S.C. § 2615(a)(1).

Mitchell v. Chapman, 343 F.3d 811, 826 (6th Cir.2003).

The FMLA defines "employer" as follows:

The term "employer" —

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or proceeding calendar year;

(ii) includes —

(I) any person who acts, directly or indirectly, in the interest of an employer to any employees of such employer; and

(II) any successor in interest of the employer;

(iii) includes any "public agency", as defined in section 203(x) of this title; and

(iv) includes the General Accounting Office and the Library of Congress.

29 U.S.C. § 2611(4)(A) (emphasis added).

Under the regulations promulgated by the Department of Labor, courts apply the "payroll method" in assessing whether an entity "employs 50 or more employees for each working day during each of 20 or more calendar workweeks." Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) ("This test is generally called the `payroll method,' since the employment relationship is most readily demonstrated by the individual's appearance on the employer's payroll."); see also Brown v. Cranford Transportation Serv., Inc., 244 F.Supp.2d 1314, 1317-18 (N.D.Ga.2002). "A private employer is covered if it maintained 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year." 29 C.F.R. § 825.105(e). The Department of Labor regulations also explain that "[a]ny employee whose name appears on the employer's payroll will be considered employed each working day of the calendar week, and must be counted whether or not any...