R. ALLAN EDGAR, Chief Judge, District
Plaintiff Carolyn Layman ("Layman"), brings this action against C D Technologies ("C D"), alleging that she was sexually harassed in violation of the Tennessee Human Rights Act ("THRA"), T.C.A. §§ 4-21-101 to 4-21-1004, that she was denied pay equal to that of similarly situated male employees in violation of the THRA and the federal Equal Pay Act, 29 U.S.C. §§ 201 to 219, and that she was denied medical leave and terminated in violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 to 2654. [Court File No. 1]. C D moves for summary judgment on all claims. [Court File No. 20]. Layman opposes this motion [Court File No. 25] and C D has filed a reply brief [Court File No. 30]. For the reasons expressed below, C D's motion for summary judgment will be GRANTED IN PART and DENIED IN PART. I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Shah, 338 F.3d at 566; Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, determine the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex, 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; Shah, 338 F.3d at 566; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). "Evidence suggesting a mere possibility" of a factual dispute is not enough to preclude summary judgment. Shah, 338 F.3d at 566; Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986).
The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; Nat'l Satellite Sports, 253 F.3d at 907. While the Court draws all reasonable factual inferences in the light most favorable to the non-moving party, it may grant summary judgment if the record taken as a whole could not lead a rational, objective jury to find for the non-moving party. Matsushita, 475 U.S. at 587; McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003). II. Facts
Layman was employed by C D as a Coil Wrapper, a general utility position, from September 1, 1989, until August 9, 2002. After her termination Layman brought three claims against C D: sexual harassment, violation of the Equal Pay Act, and violation of the Family and Medical Leave Act. Because the facts for each claim are so distinct, they will be discussed separately.
A. Sexual Harassment
Viewing the facts in the light most favorable to the plaintiff, Layman was sexually harassed by several different co-workers in several different ways. Eugene Moore was the most persistent harasser. [Court File No. 20, Exhibit A, Layman Deposition at 124]. While Layman was bent over her work table "stacking steel" Moore came up behind her and rubbed himself against her on three to five occasions. [ Id. at 107-08]. At other times when Layman was similarly bent over her work table Moore would comment that Layman was in "a good position to have sex." [ Id. at 123]. On two different occasions Moore asked Layman how much she would charge to perform oral sex. [ Id. at 116-18]. Finally, Moore made the following remark to Layman about her boyfriend: "[I]f he wears a size 12 in a shoe, he must be very large. That's the reason why you had to have an emergency C section." [Court File No. 25, Exhibit A, Layman Deposition at 136].
Layman was also sexually harassed by other co-workers. Wesley Moore, Eugene's son, asked Layman how much she charged to perform oral sex. [Court File No. 20, Exhibit A, Layman Deposition at 112, 114-15]. Samuel Boling discussed his "anaconda" in front of Layman, telling her that he wore his pants loose to give it plenty of air. [Court File No. 25, Exhibit A, Layman Deposition at 245]. One day Layman wore a tank top to work and co-workers asked her why she was trying to show off her chest. [ Id. at 246-47]. And, finally, co-workers called Layman various names, including "devil whore" and "whore devil." [Court File No. 20, Exhibit A, Layman Deposition at 158-59; Court File No. 25, Exhibit A, Layman Deposition at 155].
Layman claims to have told numerous C D employees and supervisors. Initially, Layman reported the sexual harassment to her lead person, Chris Johnson. [Court File No. 25, Exhibit A, Layman Deposition at 109-11, 116-18, 159]. Layman also claims to have discussed the sexual harassment with the following supervisors: Hugh Finley, who was Layman's direct supervisor in 1999 or 2000, [ Id. at 154]; Allan Parks, who was Layman's direct supervisor after Finley, [Court File No. 20, Exhibit A, Layman Deposition at 116, 118; Court File No. 25, Exhibit A, Layman Deposition at 154]; and, Jeff Boston, the production manager, [Court File No. 25, Exhibit A, Layman Deposition at 154]. Layman also contends that she went to Carolyn Skyles, the human resources director, to complain of her co-workers conduct. [ Id. at 250, 252; Court File No. 20, Exhibit A, Layman Deposition at 170-71]. Layman told Skyles that the co-workers were bothering her and "saying stuff about sex." [ Id.].
Further, Layman contends that the sexual harassment never stopped, even after she reported the behavior to her supervisors. According to Layman, the harassment was cyclical: the harassment would occur; she would report it; the lead person or supervisor would speak to the harassers; the harassment would stop temporarily; and then the harassment would begin anew. [Court File No. 25, Exhibit A, Layman Deposition at 244]. In fact, the harassment became so intense at one point that Layman asked to be moved to another department, away from the harassers. [ Id. at 130]. Layman testified that the harassment never permanently stopped and continued until she was terminated in August 2002. [ Id. at 244, 251-52].
B. Equal Pay Act
Layman was employed as a Coil Wrapper in the Transformer Department of C D from 1989 until August 2002. [Court File No. 25, Exhibit A, Layman Deposition at 19, 59, 69]. A Coil Wrapper is a general utility position earning $10.42 per hour. [ Id. at 76, 100]. Layman spent the vast majority of her tenure with C D performing the duties of this position. However, from time to time, Layman's supervisors would ask her to perform the duties of a Transformer Finisher, a job typically performed by men. [Court File No. 25, Exhibit A, Layman Deposition at 69-79]. Those employees who performed the duties of a Finisher earned $10.72 per hour. [ Id. at 72-101]. For example, Layman worked as a Finisher for a two and one-half month period when a co-worker was injured and out of work. [ Id. at 75-76, 95-96]. For approximately the first six weeks in this temporary role Layman was paid at her typical $10.42 hourly rate; however, for the remainder of her time in this position Layman was paid at the higher Finisher rate. [ Id.]. After this temporary substitution, Layman performed the Finisher duties on an "as needed" basis. [ Id. at 77-78]. During these occasions, C D would sometimes pay Layman at the $10.72 Finisher rate and sometimes pay her at the $10.42 Wrapper rate. [ Id. at 77-79, 82-83, 90-91].
C. Family and Medical Leave Act
Under C D's Attendance Policy, disciplinary measures are based on an employee's unexcused hours of absence incurred on a "rolling" twelve month basis. [Court File No. 20, Exhibit A, Layman Deposition at Exhibit 16; Court File No. 23, Skyles Affidavit at ¶ 9]. The disciplinary measures are as follows: less than thirty-two (32) hours of unexcused absences receives no discipline; thirty-two (32) to thirty-nine (39) hours of unexcused absences warrants a verbal warning; forty (40) to forty-seven (47) hours of unexcused absences warrants a written warning; forty-eight (48) to fifty-five (55) hours of unexcused absences warrants a three-day suspension without pay; and, fifty-six (56) hours or more of unexcused absences warrants termination. [ Id.].
C D also has a similar policy governing tardiness. A tardy employee receives a tardy against his/her record. The amount of tardy time is also counted against the employee's absentee record. [Court File No. 20, Exhibit D, Skyles Deposition at 17-18].
Following an absence in February 2002, Layman had fifty-six and one-half (56.5) unexcused hours. [Court File No. 23 at ¶ 9]. Instead of terminating or even suspending Layman, C D issued a written warning to Layman on February 15, 2002, regarding her excessive absences. [ Id. at ¶ 9; Id. at Exhibit B]. The written warning noted that the next step was a three-day suspension. [ Id. at Exhibit B].
In May 2002, Layman experienced intense abdominal and pelvic pain. [Court File No. 27, Layman Affidavit at ¶ 7]. On May 29, 2002, Layman visited Dr. Karen Sheperd, who treated Layman for pelvic pain and abdominal infection. [ Id. at ¶ 7, Exhibits A16-A21]. Dr. Sheperd concluded that Layman was continuously disabled for three days from May 29, 2002, until May 31, 2002, and would be able to return to work on June 1, 2002. [ Id. at Exhibits A16-A21].
As a result of this illness Layman was absent for three days from May 29 to May 31. [Court File No. 23 at ¶ 9]. Layman requested FMLA leave for these absences. [ Id.]. However, that request was denied because C D concluded that Layman's illness did not qualify as a serious health condition. [ Id.]. As a result, Layman incurred twenty-four (24) hours of unexcused absences. When she returned from her illness, Layman had accumulated seventy-two and one-half (72.5) unexcused hours and was suspended without pay for three days. [ Id. at ¶ 9 and Exhibit D].
The day Layman returned from her three-day suspension, June 13, she was one hour late. [Court File No. 23 at ¶ 9]. On June 20, Carolyn Skyles and Benny Barnett met with Layman to discuss her attendance. [ Id.]. At that time Skyles and Barnett informed Layman that the June 13 incident would be counted as a tardy but would not be charged against her attendance record. [ Id.]. The two warned Layman that, due to her absentee record, Layman would be terminated if she incurred any more unexcused time. [ Id.]. Skyles also informed Layman that sixteen (16) hours would "roll" off Layman's record in August. [Court File No. 25, Exhibit B, Skyles Deposition at 37-38].
By August 8, 2002, sixteen and one-half (16.5) hours "rolled" off Layman's absentee record, leaving her with fifty-six (56) unexcused hours. [Court File No. 20, Exhibit A, Layman Deposition at 223; Court File No. 20, Exhibit D, Skyles Deposition at 51; Court File No. 25, Exhibit B, Skyles Deposition at 33-35]. That day Layman reported to work almost one hour late. [ Id. at 223-24; Court File No. 23, Skyles Affidavit at ¶ 9]. In accordance with the tardy policy, this time was counted against Layman's absentee record. [Court File No. 23, Skyles Affidavit at ¶ 9]. As a result, Layman had fifty-seven (57) unexcused hours, one more than the termination threshold specified in C D's attendance policy. [ Id.; Court File No. 25, Exhibit B, Skyles Deposition at 35]. Further, Layman had already received a verbal warning, a written warning, and a three-day suspension for excessive absenteeism. [ Id.] Consequently, C D terminated Layman. [ Id.].
III. Analysis
A. Sexual Harassment Claim
To establish a claim of a hostile work environment due to sexual harassment, the plaintiff must show the following: "`1) she is a member of a protected class; 2) she was subject to unwelcomed sexual harassment; 3) the harassment was based on her sex; 4) the harassment unreasonably interfered with her work performance and created a hostile work environment; and 5) [the defendant] knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.'" Abeita v. TransAm. Mailings, 159 F.3d 246, 251 n. 5 (6th Cir. 1998) (quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997)).
The Tennessee Human Rights Act ("THRA") must be construed consistent with the Civil Rights Act of 1964. Tenn. Code Ann. § 4-21-101(a)(1). Accordingly, Layman's claim alleging a hostile work environment due to sexual harassment based on THRA are analyzed in the same manner as similar claims based on Title VII of the Civil Rights Act of 1964. Parker v. Warren County Utility Dist., 2 S.W.3d 170, 176 (Tenn. 1999); Lauro v. Tomkats, Inc., 9 F.Supp.2d 863, 871 n. 1 (M.D. Tenn. 1998).
To constitute actionable harassment, the conduct complained of must be judged by both an objective and a subjective standard: the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); Williams v. Gen. Motors Corp., 187 F.3d 553, 566 (6th Cir. 1999); Abeita, 159 F.3d at 251. "`Verbal conduct alone can be the basis of a successful hostile work environment claim'" upon analyzing the totality of the circumstances, rather than analyzing the comments as independent events. Abeita, 159 F.3d at 251 (quoting Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997)); see also Burnett v. Tyco Corp., 203 F.3d 980, 982-83 (6th Cir. 2000).
The cases have distinguished between two types of sexually hostile work environments — harassment by supervisors and harassment by co-workers — with a markedly different analysis for each. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 788-89 (6th Cir. 2000) (supervisor harassment); Williams, 187 F.3d at 561 and n. 2 (discussing both); Blankenship, 123 F.3d at 872-73 (co-worker harassment). In the instant case, Layman only alleges harassment by coworkers and not by supervisors. Accordingly, the Court will focus only on the analysis prescribed for co-worker harassment.
When the harasser is a co-worker, the standard for determining employer liability is not based upon the doctrine of respondeat superior. Blankenship, 123 F.3d at 873. Rather, the employer's liability in cases of co-worker harassment is direct, not derivative; the employer is being held directly responsible for its own acts or omissions. Id. (citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 804 n. 11 (6th Cir. 1994). In cases of co-worker harassment, an employer can be directly liable in two situations.
First, when an employer is ignorant of the existence of sexual harassment, the employer can be liable if this ignorance is due to the employer's negligence. Blakenship, 123 F.3d at 873 ("Because harassment is an especially invidious form of discrimination, as to which employers should be particularly vigilant, negligence as to the existence of harassment can be serious enough to constitute an intentional act of discrimination."). In this regard, the test is whether the employer "knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir. 1996) (citing Rabidue v. Osceola Refining Co., a Div. of Tex.-Am. Petrochems., Inc. 805 F.2d 611, 621 (6th Cir. 1986).
Second, when an employer is aware of and responds to charges of co-worker sexual harassment, "mere negligence as to the content of the response cannot be enough to make the employer liable." Id. Rather, "the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known." Id. A response which "exhibits such indifference as to indicate an attitude of permissiveness" renders the employer liable for the co-worker harassment. Blakenship, 123 F.3d at 873. However, a response reasonably calculated to end the harassment is generally adequate to absolve the employer of liability. Greenwood v. Delphi Auto. Sys., Inc., 103 Fed. Appx. 609, 612, 2004 WL 1532266 at *2 (6th Cir. 2004) (citing Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999)).
In the instant case C D argues that summary judgment is appropriate because Layman only reported sexual harassment to one supervisor who put a stop to the harassment. According to C D, Layman only discussed the sexual harassment with Chris Johnson, her lead person, and Allan Parks her supervisor. [Court File No. 21 at 8-11]. C D contends that Layman failed to inform any other supervisor or member of management of the alleged harassment. [ Id. at 8-12]. Further, C D argues that, upon learning of the harassment, Parks took appropriate action, threatening to suspend Moore upon any future harassing conduct, and the harassment ceased thereafter. [ Id. at 9-11].
The lead person is not a supervisor; this position does not have the authority to hire, fire, or discipline employees nor the authority to make recommendations on such matters. [Court File No. 22, Johnson Affidavit at ¶ 3]. The lead person is situated above general employees but below the supervisors. [Court File No. 20, Exhibit A, Layman Deposition at 100, 159].
In contrast, Layman argues that summary judgment is inappropriate because there are genuine disputes of material fact on two specific issues. First, Layman contends she informed several supervisors of the sexual harassment. [Court File No. 25 at 4-5, 10]. Second, Layman argues that the actions taken by her supervisors were insufficient and unreasonable because the sexual harassment never stopped, despite her repeated reports. [ Id. at 5, 10].
The Court finds that, in light of the record and these contentions, there are genuine disputes of material fact which prevent summary judgment at this time. To begin, there exist genuine disputes as to which supervisors Layman informed of the sexual harassment. Layman claims she informed Chris Johnson, her lead person, of the ongoing sexual harassment by Eugene Moore. In his affidavit, Johnson directly denies Layman's claims and contends that he had no knowledge of such harassment. [Court File No. 20, Johnson Affidavit at ¶¶ 4-7]. Further, Layman contends she reported the sexual harassment to Hugh Finley, Jeff Boston, and Carolyn Skyles. In contrast, C D contend that none of these supervisors were ever informed of the harassment. [Court File No. 21 at 11-12]. Jeff Boston testified in his deposition that Layman never reported any harassment to him. [Court File No. 20, Exhibit C, Boston Deposition at 12-17]. Similarly, Carolyn Skyles testified and stated in her affidavit that Layman never reported any harassment to her. [ Id., Exhibit D, Skyles Deposition at 46; Court File No. 23, Skyles Affidavit at ¶¶ 3-7]. That the parties dispute which supervisors Layman informed of the sexual harassment precludes a finding of whether C D was negligent in its knowledge of and reaction to the harassment. Consequently, this factual dispute precludes summary judgment.
Moreover, the Court finds that there are genuine disputes as to whether the response taken by Allan Parks was unreasonable. In this regard, the Court notes that, in short, Layman equivocates in her deposition. At one point Layman testified that the sexual harassment stopped after Allan Parks reprimanded the harassers. [Court File No. 20, Exhibit A, Layman Deposition at 120]. Subsequently, Layman testified that the sexual harassment never permanently ceased, continuing until she was terminated in August 2002. [Court File No. 25, Exhibit A, Layman Deposition at 244, 251-52]. On a summary judgment motion the Court cannot weigh the evidence, determine the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Consequently, these discrepancies in Layman's testimony are factual disputes that cannot be resolved on summary judgment.
In sum, viewing the facts in the light most favorable to Layman, the Court finds that there are genuine disputes of material fact precluding summary judgment. Accordingly, C D's motion for summary judgment on Layman's sexual harassment claim will be DENIED.
B. Equal Pay Act Claim
The Equal Pay Act prohibits employers from paying an employee at a rate less than that paid to employees of the opposite sex for equal work. FAIR LABOR STANDARDS ACT OF 1938, § 6, as amended, 29 U.S.C. § 206(d)(1); accord Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998). To establish a prima facie case under the Equal Pay Act, a plaintiff must present evidence that the defendant-employer paid employees of one sex less than employees of the opposite sex "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . ." 29 U.S.C. § 206(d)(1). "`Equal work' does not require that the jobs be identical, but only that there exist `substantial equality of skill, effort, responsibility and working conditions.'" Buntin, 134 F.3d at 799 (quoting Odomes v. Nucare, Inc., 653 F.3d 246, 250 (6th Cir. 1981)); accord Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000). In determining whether there is substantial equality in these respects in a given case, it is necessary to make "`an overall comparison of the work, not its individual segments.'" Id. (quoting Odomes, 653 F.2d at 250).
In the instant case Layman claims that she was not paid commensurate with male employees when she was performing the job duties of a Transformer Finisher. When Layman was performing the duties of a Finisher, she was sometimes paid at the Finisher rate of $10.72 per hour, and at other times she was paid at the $10.42 hourly rate for a Coil Wrapper. [Court File No. 25, Exhibit A, Layman Deposition at 82-84, 90-91]. Layman contends that C D violates the Equal Pay Act by failing to pay her at the $10.72 per hour rate for all of her time spent at the Finisher position.
C D argues that Layman cannot establish a prima facie case under the Equal Pay Act. C D contends that Layman was not performing a job equal to the male Transformer Finishers because Layman admittedly could not perform some of the essential duties of that position. [Court File No. 21 at 20]. For example, Layman admits that she cannot drive a forklift and cannot finish making the larger motive transformers. [Court File No. 20, Exhibit A, Layman Deposition at 101-03]. Further, C D claims that Layman was not performing any of the Finisher job duties on her own, but rather was merely helping someone else complete his/her job. [ Id.].
C D also argues that their treatment of Layman is not a violation of the Equal Pay Act because there is a female, Dean Stewart, employed as a Transformer Finisher earning the same $10.72 per hour as the male Finishers. [Court File No. 20, Exhibit A, Layman Deposition at 70-71, 87-88]. Though this fact may be true it sheds no light on the issue at hand: whether C D violated the Equal Pay Act by paying Layman less when she performed Finisher duties than paid to male Finishers.
After reviewing the record and viewing the facts in the light most favorable to the plaintiff, the Court finds that there are genuine disputes of factual issues as to whether Layman can establish a prima facie claim under the Equal Pay Act. Layman claims that she could perform all of the essential functions of the Finisher position, that she was performing work equal to that of the male Finishers, and that she was paid at the higher, commensurate rate only occasionally. C D claims that Layman could not perform two of the necessary duties of a Finisher, that she was not performing equal work to the male Finishers, and that she was merely helping other Finishers complete their job. These issues are factual disputes precluding summary judgment.
Even when there exists a genuine dispute regarding the plaintiff's prima facie case under the Equal Pay Act, the defendant may still be entitled to summary judgment by proving one of the affirmative defenses delineated in the Act. In such a scenario, the burden shifts to the defendant to show that the pay differential is justified under one of the following four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system based on quantity or quality of production; or (4) any factor other than gender. 29 U.S.C. § 206(d)(1); accord Kovacevich, 224 F.3d at 826; Buntin, 134 F.3d at 799. Because these explanations are affirmative defenses, the defendant bears the burden of proof by a preponderance of the evidence. Kovacevich, 224 F.3d at 827-27; Buntin, 134 F.3d at 799-800; E.E.O.C. v. Romeo Cmty. Schs., 976 F.2d 985, 988 (6th Cir. 1992).
The burden of proving one of these affirmative defenses is a heavy one and is difficult to carry at the summary judgment stage. Kovacevich, 224 F.3d at 826. The defendant is "entitled to summary judgment [only if] it has satisfied its burden of demonstrating that there is no genuine dispute on any material fact in regard to this issue." Romeo, 976 F.2d at 989. Thus, to survive the defendant's summary judgment motion, the plaintiff is not required to produce evidence from which a reasonable juror could find that the employer's reason is a pretext. Buntin, 134 F.3d at 799-800. Rather, as the party who bears the burden, the defendant-employer must establish the defense so clearly that no reasonable juror could find to the contrary. See id.
In the case at bar, C D argues that the pay differential is justified under the "any factor other than gender" defense. This defense enables a defendant to succeed by establishing that the wage disparity was based upon a factor other than sex. 29 U.S.C. § 206(d)(1). This defense "does not include literally any other factor, but a factor that, at a minimum, was adopted for a legitimate business reason." E.E.O.C. v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988) (citing Bence v. Detroit Health Corp., 712 F.2d 1024, 1029-31 (6th Cir. 1983)).
C D asserts as its justification for the wage discrepancy the company's policy to pay an employee at his/her lower pay rate while he/she is training for a higher paying position. [Court File No. 23, Skyles Affidavit at ¶ 8; Court File No. 24, Barnett Affidavit at ¶ 8]. Some C D employees, like Layman, perform the duties of higher paying positions on an "as needed" basis but do not transfer into the position permanently. When this particular employee is training to perform the duties of the higher paying position, C D pays the employee at the lower pay rate. [ Id.].
C D's policy is a legitimate business reason for the pay differential, but only while Layman was in training. Once Layman was fully trained, this policy may not justify a wage discrepancy. That C D eventually paid Layman the $10.72 per hour rate when she performed Finisher duties evidences that Layman was fully trained in the Finisher position. For all subsequent occasions that Layman performed Finisher duties but was not paid accordingly, this defense may not be applicable. Accordingly, for these subsequent occasions the critical issue is whether Layman can establish a prima facie case. Because there are genuine disputes of fact on this issue, C D's motion for summary judgment on the Equal Pay Act claim will be DENIED.
C. Family and Medical Leave Act Claim
The Family and Medical Leave Act ("FMLA") entitles an eligible employee up to twelve weeks of leave during any twelve-month period if the employee has "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D); accord Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420 (6th Cir. 2004). The statute defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." Id. at § 2611(11); accord Brenneman, 366 F.3d at 420-21.
The Sixth Circuit recognizes two distinct theories for recovery under the FMLA: (1) the "entitlement" or "interference" theory arising from 29 U.S.C. § 2615(a)(1); and (2) the "retaliation" or "discrimination" theory arising from 29 U.S.C. § 2615(a)(2). As the Sixth Circuit has stated, "[t]he [FMLA] creates `prescriptive and proscriptive employee rights.'" Taylor v. Union Inst., 30 Fed. Appx. 443, 452, 2002 WL 252443, at *7 (6th Cir. Feb.19, 2002) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)); see also Arban. v. West Pub. Corp., 345 F.3d 390, 400-01 (6th Cir. 2003).
1. Denial of FMLA Rights
In the instant case Layman claims that C D interfered with her FMLA rights by refusing to authorize her FMLA leave for her three-day absence from May 29, 2002, to May, 31, 2002. Consequently, the interference provision, 29 U.S.C. § 2615(a)(1), is at issue in this case. This provision provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided in this subchapter." 29 U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b).
To prevail on a claim for violation of an employee's prescriptive rights under § 2615(a)(1), the plaintiff need not show that she was treated worse than other employees. Taylor, 30 Fed. Appx. at 452, 2002 WL 252443, at *7. Rather, the plaintiff must establish that: (1) she was an eligible employee, (2) the defendant is a covered employer, (3) she was entitled to leave under the FMLA, (4) she gave the defendant notice of her intent to take leave, and (5) the defendant denied her FMLA benefits or interfered with FMLA rights to which she was entitled. Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003).
C D does not contest that Layman was an eligible employee for FMLA leave, nor does it contest that it is a covered employer. As a result, the Court will consider both the first and second requirements satisfied. However, C D contends that it is entitled to summary judgment on Layman's FMLA claim because Layman fails to satisfy the third and fourth requirements.
Regarding the third requirement — whether Layman is entitled to FMLA leave — the issue is whether Layman was suffering from a "serious health condition" at the time of her absence in May 2002: Layman contends that she was; C D claims that she was not. An employee is entitled to FMLA leave, and thus satisfies the third requirement, where the employee suffers from a "serious health condition" preventing the employee from performing the duties of her job. 29 U.S.C. § 2612(a)(1)(D). According to the regulations promulgated by the Department of Labor, a serious health condition is defined, in relevant part, as follows:
(a) For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves:
. . .
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i)
A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom)
of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
29 C.F.R. § 825.114 (emphasis added).
In May 2002, Layman experienced intense abdominal and pelvic pain. [Court File No. 27, Layman Affidavit at ¶ 7]. On May 29, 2002, Layman visited Dr. Karen Sheperd, who treated Layman for pelvic pain and abdominal infection. [ Id.; Court File No. 27, Exhibits A16-A21]. Dr. Sheperd concluded that Layman was continuously disabled for three days from May 29 until May 31 and would be able to return to work on June 1. [Court File No. 27, Exhibits A16-A21].
Realizing that a disability of only three days is alone insufficient to qualify as a "serious health condition," Layman claims that the May 2002 illness is intermittent treatment relating to a previous "serious health condition." To be clear, Layman argues that the May 2002 illness qualifies for FMLA leave as a "subsequent . . . period of incapacity relating to [a previous serious health] condition." 29 C.F.R. § 825.114(a)(2)(i). Layman contends that her illness in May 2002, relates to the medical problems she has experienced intermittently since 1994. [Court File No. 27, Layman Affidavit at ¶ 8]. After the birth of her son in late 1994, Layman experienced lower abdominal pain, pelvic pain, and vaginal bleeding as a result of pregnancy complications. [ Id. at ¶ 3, Exhibits A4-A6; Court File No. 31, Exhibit A]. Layman sought treatment for these problems from Dr. James T. Nunnally, Jr. throughout 1995, culminating in surgery on August 25, 1995. [ Id. at ¶ 5, Exhibits A4-A6; Court File No. 30, Exhibit A]. Dr. Nunnally continued to treat Layman for these problems through 1997. [ Id., Exhibits A1-A3]. According to Layman the pelvic and abdominal pain she experienced in 2002 relates to these medical problems and, thus, qualifies for FMLA leave.
Viewing the facts in the light most favorable to the plaintiff, the Court finds that Layman did not suffer from a "serious health condition" at the time of her three-day absence in May 2002. There is no doubt that Layman's May 2002 absence was not "more than three consecutive calendar days." 29 C.F.R. § 825.114(a)(2)(i). All of the evidence Layman offers regarding this absence recommended that Layman stay off work from May 29 to May 31. [Court File No. 27, Exhibits A16-A21]. Moreover, all of this evidence concludes that Layman was able to work on June 1. [ Id.].
Further, the Court finds that Layman's May 2002 illness was not a "period of incapacity relating to [a previous serious health] condition." 29 C.F.R. § 825.114(a)(2)(i). Layman offers no medical opinion of any kind to indicate that the May 2002 illness was in any way related to her previous problems. Instead, Layman only presents the medical records concerning the two conditions, and nothing in these records indicates any relationship. Layman relies on the fact that both the May 2002 problems and the previous medical problems involve pelvic and abdominal pain. This evidence suggests nothing more than the mere possibility of a relationship, an amount of evidence insufficient to withstand summary judgment. Shah, 338 F.3d at 566; Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986).
Layman also presents the medical records of Dr. Lane Griggs concerning his treatment of and subsequent surgery on Layman in July and August 2002. [Court File No. 27, A7-A15]. The Court fails to see the relevance of these records. This treatment occurred two months after the treatment in question. Moreover, nothing in Griggs' records indicates any relationship between Layman's 2002 condition and her previous condition.
Moreover, Dr. Sheperd's records from Layman's May 2002, treatment actually indicate the lack of any relationship to the previous condition. On form WH-380 Dr. Sheperd notes that "Pt began pelvic discharge 1 wk prior to coming to see physician. Seen on 5/29/02." [Court File No. 27, Exhibit A18]. Viewing the evidence in the light most favorable to the plaintiff, the Court finds no evidence of a relationship between Layman's May 2002 illness and her condition of 1994 to 1997. Consequently, Layman did not suffer from a "serious health condition."
Finding that Layman's May 2002 illness does not constitute a "serious health condition," the Court concludes that Layman was not entitled to FMLA leave for that three-day absence. Consequently, Layman cannot prove that C D interfered with her FMLA rights. Accordingly, C D is entitled to judgment as a matter of law and its summary judgment motion will be GRANTED.
Assuming arguendo that Layman's May 2002 illness does constitute a "serious health condition," summary judgment is still appropriate because Layman cannot satisfy the fourth requirement — that she gave C D sufficient notice of her intent to take FMLA leave. This requirement does not demand an eligible employee to expressly mention the FMLA as the source of her right to request such leave. Brenneman, 366 F.3d at 421 (citing Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999)). Rather, the critical test for substantively-sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of her request to take leave for a serious health condition that rendered her unable to perform her job. Brenneman, 366 F.3d at 421(citing Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998)); Arban, 345 F.3d at 400; Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 825 (6th Cir. 2002).
Once an employer is given notice that an employee is requesting FMLA leave, the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA. Brenneman, 366 F.3d at 422 (citing Hammon, 165 F.3d at 450). However, the plaintiff must still show that she gave the defendant sufficient information for the defendant to conclude that she was suffering from a serious medical condition. Hammon, 165 F.3d at 451.
In the case at bar, the Court finds that Layman did not provide C D sufficient notice. Specifically, Layman failed to provide adequate information to enable C D to conclude that Layman suffered from a serious health condition and, thus, was entitled to FMLA leave for her May 2002 absence. As noted above, Layman contends that the May 2002 illness constitutes a serious health condition because it is intermittent treatment relating to a prior serious health condition. To provide sufficient notice to C D in this context, Layman needed to provide C D adequate information to link the May 2002 absences with her prior FMLA-qualifying absences from 1994 to 1997.
Layman failed to provide such information in this case. As noted above, there is no evidence that her illness was related to her post-pregnancy condition during 1994-1997. Moreover, Layman does not even argue that she notified C D of any link between the May 2002 absences and the absences incurred from 1994 to 1997. [Court File No. 25].
Layman's lone argument that she provided C D sufficient notice is essentially that C D was aware of Layman's post-pregnancy difficulties in 1994 and 1995. [ Id. at 16]. Layman argues that C D was aware of Layman's prior condition because Layman used FMLA leave for some of these absences and provided C D with the appropriate forms documenting the medical problems. [ Id.]. That C D was aware of Layman's prior medical condition is inconsequential: Layman still failed to provide C D any information from which it could conclude that the May 2002 illness was related to her previous condition. Consequently, C D could not conclude that Layman's three-day absence in May 2002 constituted a serious health condition.
Viewing the facts in the light most favorable to the plaintiff, the Court finds that Layman failed to provide sufficient notice to C D. Consequently, Layman cannot prove that C D interfered with her FMLA rights. Accordingly, C D's motion for summary judgment on Layman's FMLA interference claim will be GRANTED. 2. Retaliatory Discharge
Layman also argues that her termination violates the retaliatory provision of the FMLA, 29 U.S.C. § 2615(a)(2). An FMLA retaliation-case relying upon indirect evidence, as in this case, is governed by the same general three-step process delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). Under McDonnell Douglas, the plaintiff must first prove a prima facie case of retaliatory discharge. Id. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff's discharge. Id. If the defendant satisfies this burden, the plaintiff must then prove that the defendant's articulated reason is merely a pretext for the retaliatory discharge. Id.
To establish a prima facie case of retaliatory discharge for asserting her rights under the FMLA, an employee must show that: (1) she availed herself of a protected right by notifying the employer of her intent to take leave; (2) she was adversely affected by an employment decision, e.g., discharge; and (3) the proximity in time between the employee's request for leave and the adverse action constitutes indirect evidence of a causal connection. Skrjanc, 272 F.3d at 314.
To the extent Layman argues that she was terminated for seeking FMLA leave for her three-day absence in May 2002, in violation of the retaliatory provision of the FMLA, 29 U.S.C. § 2615(a)(2), she is incorrect. Layman cannot establish a prima facie claim of retaliation based on the three-day absence. As discussed above, this three-day absence is not protected by the FMLA and, even if it is, Layman did not provide sufficient notice to C D. Consequently, Layman does not satisfy the first element of a prima facie claim — that she availed herself of a protected right by notifying C D of her intent to take leave. Accordingly, C D's motion for summary judgment on Layman's FMLA retaliation claim based on her three-day, May 2002, absence will be GRANTED.
It is unclear whether Layman contends that she was terminated for notifying C D of her impending surgery in August 2002, and that such termination violates the retaliatory provision of the FMLA, 29 U.S.C. § 2615(a)(2). The Court does not now decide any such claim.
In sum, C D's motion for summary judgment will be GRANTED IN PART and DENIED IN PART. Specifically, C D's motion for summary judgment on Layman's sexual harassment claim will be DENIED. C D's motion for summary judgment on Layman's Equal Pay Act claim will be DENIED. C D's motion for summary judgment on Layman's FMLA interference claim will be GRANTED. C D's motion for summary judgment on Layman's FMLA retaliatory discharge claim based on the May 2002, three-day absence will be GRANTED.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, C D's motion for summary judgment pursuant to FED. R. CIV. P. 56 [Court File No. 20] is GRANTED IN PART and DENIED IN PART. Specifically, C D's motion for summary judgment on Layman's sexual harassment claim is DENIED. C D's motion for summary judgment on Layman's Equal Pay Act claim is DENIED. C D's motion for summary judgment on Layman's FMLA interference claim is GRANTED. C D's motion for summary judgment on Layman's FMLA retaliatory discharge claim based on the May 2002, three-day absence is GRANTED.
SO ORDERED.