ROBERT HOLMES BELL, U.S District Judge
In this federal question action Plaintiff Sheila Gardenour has brought suit alleging that she was discharged in retaliation for exercising her statutory rights under the Family Medical Leave Act, 29 U.S.C. § 2601. Defendant Powerquest has brought a motion for summary judgment pursuant to Rule 56(c), asserting that there is no genuine issue as to any material tact and that Defendant is entitled to a judgment as a matter of law.
Powerquest manufactures boats in Holland, Michigan. Sheila Gardenour was hired by Powerquest in April 1998 to work in its manufacturing facility. During the interview process Gardenour told Powerquest of her propensity for migraine headaches. Gardenour has unfortunately been afflicted with this serious medical condition for a number of years. As with most migraine situations, medical treatment has been ineffectual at best.
Powerquest treated all Gardenour's absences due to migraines as excused during her first year, despite the fact that it was not legally required to do so. The FMLA does not take effect until after an employee has been with a company for one year. Powerquest has a company policy that employees are disciplined and subject to discharge only for unexcused absences from work.
By October 1998 (after six months of employment) Gardenour was issued a warning because she had accumulated 5 unexcused absences and six tardies apart from absences due to her migraines. She was told she was in danger of being fired if the pattern continued. On January 11, 1999, she was reprimanded for her sixth unexcused absence. She apparently missed work the next two days for non-migraine reasons, and on Januarv 13, 1999, she was given a three-day suspension and warned that her next absence would result in termination of employment.
Gardenour had no more unexcused absences until after her one-year anniversary, at which time her previous unexcused absence record was purged according to Powerquest's practice. But by March 1, 1999, Gardenour had been tardy ten times and was given a one-day suspension. At her April 6, 1999, one-year review, Gardenour was told her work was good, but that she needed to improve her attendance record.
By April 29, 1999 — only three weeks after her record was purged — Gardenour had accumulated four unexcused absences, and received a written warning. By August 1999 Gardenonr lead accumulated six unexcused absences and was tardy eight times. See Plaintiff Dep. at 66-67; Anderson Dep., Exh. 4.
On August 6, 1999, Gardenour was laid off along with five other production workers. Powerquest claims the layoffs were due to a lack of work and a slowdown at Powerquest, and that Gardenour was chosen to be laid off because of her unexcused absences. Plaintiff contends she was laid off because of the time she took off work under the FMLA.
In total, the record indicates that her first year, April 6, 1998-April 6, 1999, Gardenour had twenty-five excused absences for headaches, six unexcused absences and ten tardies. From April 6, 1999 until her layoff in August 1999 she had twenty-one excused absences under the FMLA, seven unexcused absences, eight tardies. During that four-month period she also took five vacation days and three personal days. See Plaintiff's Exh. 2, 4. Plaintiff admitted in her deposition that she had missed work for car trouble, flat tires, weather, and other reasons. See Plaintiff's Dep. at 54, 57, 63, 65-66.
Analysis
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue concerning a material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Rule 56(c) the court must view the evidence in a light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to the party's case for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When considering motions for summary judgment, the Supreme Court has established a specific burden-shifting procedure. The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to come forward with evidence showing that there is a genuine issue of material fact that must go to trial. See Anderson, 477 U.S. at 256. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment as a matter of law. See Celotex Corp., 477 U.S. at 324.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court described that application of this burden shifting procedure to discrimination cases. This framework has been adopted by Michigan Courts. See, e.g., Thomas V. Hoyt, Brumm Link, Inc., 910 F. Supp. 1280, 1286 (E.D.Mich. 1994) ; Town v. Michigan Bell Tel. Co., 455 Mich. 688, 695 (1997). A plaintiff bears the initial burden of establishing a prima facie case of discrimination by demonstrating that he suffered an adverse employment action under circumstances giving rise to an inference of discrimination.
If the plaintiff succeeds in establishing a prima facie case of discrimination, the burden shifts to the defendant to provide a legitimate nondiscriminatory reason for not promoting the plaintiff. See Wilcoxon v. Minnesota Mining Mfg. Co., 235 Mich. App. 347, 359 (1999). If the defendant is able to provide a legitimate nondiscriminatory reason, then the plaintiff has the burden of proving that the stated reason is merely a pretext. Id.
The FMLA prohibits an employer from discriminating against an employee who has taken advantage of the FMLA's leave entitlement of up to twelve weeks per year for a serious health condition. Defendant admits that Plaintiff was an employee with a serious medical condition who was allowed to take medical leave pursuant to the FMLA.
To establish that Defendant had an improper motive in an FMLA case, Plaintiff's charge must survive an analysis under the burden-shifting arrangement established by the Supreme Court in McDonnell-Douglas. See, e.g., Stevens v. Henderson 2000 WL 1456919, 4 (S.D.Ohio 2000).
The plaintiff in an FMLA discrimination action may prove discrimination by direct evidence or by establishing a prima facia case by a preponderance of the evidence. Here, Plaintiff has no direct evidence of discrimination. The elements of a prima facia case of employment discrimination under FMLA are: (1) that plaintiff had an FMLA qualifying illness and used FMLA leave; (2) that the plaintiff was qualified for the position she was performing; (3) that plaintiff suffered an adverse employment action; and (4) that there is a causal connection between the protected activity and the adverse employment action. If the plaintiff establishes a prima facia case, then the burden shifts to the defendant to come forward with a legitimate, non-discriminatory reason for the adverse action against the plaintiff. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 508 (1993); Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981 ).
If the defendant comes forward with a legitimate, non-discriminatory reason for its actions. then the burden shifts to the plaintiff to prove that the defendant's proffered reason is a mere pretext for discrimination. See Hicks, 509 U.S. at 512, n. 4 ; Burdine, 450 U.S. at 253; Ang v. Procter Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991). "The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.
Here, there is no dispute about the facts. The only disagreement is over the motivation of Powerquest in discharging Plaintiff. Plaintiff succeeds in the first three requirements of establishing a prima facia case for discrimination, but fails to prove a causal connection between her use of the FMLA leave and her being laid off. Mere assertions are not enough to establish that there is a causal connection. See Uhl v. Zalk Josephs Fabricators. Inc., 121 F.3d 1133, 1137 (7th Cir. 1997 ) ("Facts, not an employee's perceptions and feelings, are required to support a discrimination claim."); Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 931-32 (7th Cir. 1995) ("[s]peculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.").
Even if Plaintiff succeeded in establishing a prima facia case, Defendant has come forward to offer a legitimate non-discriminatory reason for Plaintiff's discharge: Powerquest had to lay off workers due to work slowdown, and Plaintiff had more unexcused absences than other workers quite apart from her FMLA leave. The record indicates that Powerquest was diligent in honoring the provisions of the FMLA in regard to Plaintiff. It could not, however, as a matter of business judgment. overlook the fact that apart from her FMLA leave Plaintiff had the worst absentee record in her department. See Lee Dep. at 13-14, 17-18; Anderson Dep. at 21.
Powerquest excused Plaintiff's 25 absences for migraines during her first year even though the FMLA is not available to an employee until after 12 months of employment.
The burden then shifts to the Plaintiff to offer evidence that the legitimate nondiscriminatory reason offered by Powerquest is a mere pretext. Ang v. Proctor Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991). The record is devoid of any such evidence.
Plaintiff also asserts that because of Powerquest's policy of purging unexcused absences on the anniversary of an employee's hiring date, Powerquest should not have considered Plaintiff's unexcused absences during her first year with the company. But this would be manifestly unfair. The policy goes only to the evaluation of an employee's record for dismissal as a punitive measure. Nothing in the policy, and certainly nothing in the FMLA, prevents Powerquest from considering the purged absences as it makes business decisions regarding layoffs.
The Court concludes that when viewing the evidence in a light most favorable to the plaintiff, there is no genuine issue as to any material fact and that Defendant is entitled to a judgment as a matter of law pursuant to Rule 56(c).
Accordingly, an order consistent with this opinion will be entered.
ORDER AND JUDGMENT
In accordance with the opinion entered this date the Court hereby ORDERS that Defendant Powerquest Boats, Inc.'s Motion for Summary Judgment pursuant to FED. R. CIV. P. 56(c) (Docket # 24) is GRANTED and JUDGMENT is entered in favor of Defendant.