UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH J. BOUCHARD, 

Plaintiff,

v. Case No. 14-14009

Honorable Denise Page Hood 

CITY OF WARREN,

Defendant.

 /

ORDER DENYING PLAINTIFF’S RENEWED MOTION

FOR JUDGMENT AS A MATTER OF LAW [#87]

I. INTRODUCTION

A jury trial in this matter commenced on August 28, 2017, and it concluded on

September 6, 2017. On September 6, 2017, the jury returned a verdict in favor of

Defendant and against Plaintiff on all counts. The Court then denied as moot

Defendant’s oral and written motions for judgment as a matter of law and Plaintiff’s

oral motion for judgment as a matter of law. [Dkt. No. 83] Plaintiff has filed a

Renewed Motion for Judgment as Matter of Law (“Renewed JMOL Motion”) [Dkt.

No. 87], and the Renewed JMOL Motion has been fully briefed. For the reasons set

forth below, the Court denies the Renewed JMOL Motion. 
II. BACKGROUND

Plaintiff filed this suit, alleging that Defendant interfered with his rights to take

medical leave pursuant to the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.

(“FMLA”). Plaintiff alleges that Defendant refused to reinstate him to work prior to

undergoing an unlawful independent medical evaluation, such that Plaintiff was

constructively discharged. 

At trial, undisputed evidence was introduced that: (a) Plaintiff first requested

FMLA leave on June 19, 2014; (b) submitted a physician’s note on June 21, 2014; and

(c) was approved for FMLA leave on July 2, 2014. [Dkt. No. 87, Ex. 1 and 2 (Joint

Trial Exhibits 19, 22, 23, 26)] On July 7, 2014, Phil Easter, Human Resources

director for Defendant in 2014 (“Mr. Easter”), sent Plaintiff a letter that said: (1) Mr.

Easter had received Plaintiff’s July 7, 2014 email request that Plaintiff’s FMLA leave

be extended through August 11, 2014; and (2) Mr. Easter was approving FMLA leave

for Plaintiff through August 8, 2014. [Dkt. No. 87, Ex. 3 at PgID 2163]

The undisputed evidence introduced at trial revealed that Defendant (via letters

prepared by Mr. Easter) advised Plaintiff: (1) on June 20, 2014, that Plaintiff had to

“attend an evaluative session with Dr. Daniel Altier . . . before you return to work;”

(2) on July 3, 2014, that Plaintiff had “to undergo a ‘fitness for duty’ evaluation prior

to [his] return to work . . . ;” and (3) on July 8, 2014, that, “after your physician has

2
released you for work, you will be reinstated to employment, but due to concerns

which I previously stated about your work place behavior, it will be necessary for you

to undergo a ‘fitness for duty’ evaluation prior to your actual return to duty.” [Dkt.

No. 87, Ex. 3 (Joint Trial Exhibits 21, 27, and 30, respectively)] Plaintiff testified that

“he did not feel he could return to work without first undergoing this psychological

examination” and, because he would not undergo this examination, he suffered a

constructive discharge when he resigned on August 1, 2014.

III. LEGAL STANDARD

A. Rule 50

Judgment as a matter of law should be granted when “viewing the evidence in

the light most favorable to the non-moving party, there is no genuine issue of material

fact for the jury, and reasonable minds could come to but one conclusion, in favor of

the moving party.” Jordan v. City of Cleveland, 464 F.3d 584, 594 (6th Cir. 2006)

(citing Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir. 2004)). See also Gray

v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001); Williams

v. Nashville Network, 132 F.3d 1123, 1130-31 (6th Cir. 1997); Barnes v. City of

Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005). A motion for judgment as a matter of

law should not be granted unless reasonable minds could come to only one

conclusion, a conclusion that favors the moving party. Radvansky v. City of Olmstead

3
Falls, 496 F3d 609, 614 (6th Cir. 2007).

B. Rule 59

Rule 59(a) of the Federal Rules of Civil Procedure states: “A new trial may be

granted to all or any of the parties and on all or part of the issues (1) in any action in

which there has been a trial by jury, for any of the reasons for which new trials have

heretofore been granted in actions at law in the courts of the United States ....” A new

trial is warranted under Rule 59(a) when a jury has reached a “seriously erroneous

result,” as evidenced by the verdict being against the great weight of the evidence.

Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). As the Sixth Circuit has stated:

In ruling upon a motion for a new trial based on the ground

that the verdict is against the great weight of the evidence,

a district judge must compare the opposing proofs and

weigh the evidence . . . and “it is the duty of the judge to set

aside the verdict and grant a new trial, if he is of the

opinion that the verdict is against the clear weight of the

evidence. . . .”

* * * * *

“Courts are not free to reweigh the evidence and set aside

the jury verdicts merely because the jury could have drawn

different inferences or conclusions or because judges feel

that other results are more reasonable.”

Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir. 1982) (citations omitted); Walker v.

Bain, 257 F.3d 660, 670 (6th Cir. 2001).

IV. ANALYSIS

4
Plaintiff argues that he is entitled to judgment as a matter of law on his FMLA

interference claim because Defendant conditioned Plaintiff’s return to work on

undergoing a fitness for duty evaluation by a third-party psychologist. Plaintiff asserts

that the requirement that Plaintiff undergo that evaluation resulted in the constructive

discharge of Plaintiff and constituted a per se violation of the FMLA. Citing 29 U.S.C.

§ 2614 (requiring an employee who has utilized FMLA leave to be returned to the

same or equivalent position); 29 C.F.R. § 825.214. 

The FMLA provides that when an employee has completed FMLA leave, that

employee is entitled to reinstatement upon certification by the employee’s health care

provider. 29 U.S.C. § 2614(a)(4). “No second or third opinions on a fitness-for-duty

certification may be required.” 29 C.F.R. § 825.312(b). See also 29 U.S.C. § 2614

(“the employer may have a uniformly applied practice or policy that requires each

such employee to receive certification from the health care provider of the employee

that the employee is able to resume work”). “The FMLA regulations also state,

however, that ‘[r]equirements under the Americans with Disabilities Act (ADA), as

amended, apply.” White v. Cnty. of Los Angeles, 225 Cal.App.4th 690, 702 (2014). 

And, in the comments to the 2008 revision to the Department of Labor’s regulations,

the Department of Labor stated,

“An employer may not require that an employee submit to a medical

exam by the employer’s health care provider as a condition of returning

5
to work. A medical examination at the employer’s expense by an

employer’s health care provider may be required only after the employee

has returned from FMLA leave and must be job-related and consistent

with business necessity as required by the ADA. Thus, if an employer is

concerned about the health care provider’s fitness-for-duty certification,

the employer may, consistent with the ADA, require a medical exam at

the employer’s expense after the employee has returned to work from

FMLA leave as stated in paragraph (h) in the final rule. The employer

cannot, however, delay the employee’s return to work while arranging

for and having the employee undergo a medical examination.” (73

Fed.Reg. 67934–01, 68033 (Nov. 17, 2008), italics added.)

White v. Cnty. of Los Angeles, 225 Cal.App.4th at 705-06. “Once an employee has

been returned to work, ‘the FMLA’s fitness-for-duty regulation no longer applies.’” 

White, 225 Cal.App.4th at 705. 

It is undisputed that Defendant advised Plaintiff: (1) on June 20, 2014, that

Plaintiff had to “attend an evaluative session with Dr. Daniel Altier . . . before you

return to work;” (2) on July 3, 2014, that Plaintiff had “to undergo a ‘fitness for duty’

evaluation prior to [his] return to work . . . ;” and (3) on July 8, 2014, that, “after your

physician has released you for work, you will be reinstated to employment, but due

to concerns which I previously stated about your work place behavior, it will be

necessary for you to undergo a ‘fitness for duty’ evaluation prior to your actual return

to duty.” [Dkt. No. 87, Ex. 3 (Joint Trial Exhibits 21, 27, and 30, respectively)] It also

is undisputed that Dr. Daniel Altier was a physician designated by Defendant, not

Plaintiff’s treating physician. At trial, Mr. Easter testified, consistent with the July 8,

6
2014 letter Mr. Easter sent to Plaintiff (Joint Trial Exhibit 30), that: (1) Plaintiff would

be reinstated once Plaintiff’s physician released him to work, (2) at which time

Plaintiff would be returned to pay status and receive his regular salary and benefits,

but (3) that Plaintiff would then be required to undergo the evaluation before Plaintiff

would be permitted to return to work.

Plaintiff contends that he never informed Defendant that Plaintiff was able to

return to work because Plaintiff would be required to undergo the “fitness for duty”

evaluation. Plaintiff contends that, because he had no option other than to

involuntarily resign, he was constructively discharged. Citing Smith v. Henderson, 376

F.3d 529, 533-34 (6th Cir. 2004) (constructive discharge means that an employer

deliberately made an employee’s working conditions so intolerable that the employee

was forced to resign). Plaintiff argues that the evidence presented at trial

“conclusively establishes that Defendant’s prerequisite that Plaintiff undergo a ‘fitness

for duty’ evaluation by a third party psychologist before returning to work is a per se

violation of the FMLA and because this unlawful precondition constituted a

constructive discharge of Plaintiff, rendering it impossible for him to return to work,

Plaintiff is entitled to judgment as a matter of law with regard to his FMLA claim and

a new trial on the issue of damages.”

The Court is not persuaded by Plaintiff’s arguments, especially when the

7
evidence is viewed in a light most favorable to Defendant, as it must be when

considering Plaintiff’s Renewed JMOL Motion. See, e.g., Jordan, 464 F.3d at 594. 

First, the July 8, 2014 letter from Mr. Easter to Plaintiff states that Plaintiff will be

reinstated to employment once Plaintiff’s physician released Plaintiff to work. As

numerous courts considering FMLA and ADA claims have held, once an employee

has been returned to work, the employer can order a fitness-for-duty evaluation. See,

e.g., White, 225 Cal.App.4th at 707; Sullivan v. River Valley Sch. Distr., 197 F.3d 804,

811-12 (6th Cir. 1999); Bloomfield v. Whirlpool Corp., 984 F.Supp.2d 771, 785 (N.D.

Ohio 2013). So, had Plaintiff produced a certification from his physician that Plaintiff

could return to work, Defendant then would have had the right to require Plaintiff to

submit to a fitness-for-duty evaluation because Plaintiff would no longer be on FMLA

leave. The jury reasonably could have determined that, even though Plaintiff was still

on FMLA leave when Defendant notified Plaintiff that he would have to undergo a

fitness-for-duty evaluation before he could resume working, Defendant was not

requiring Plaintiff to be evaluated by Defendant’s physician as a precondition to being

reinstated from FMLA leave. 

Second, the July 8, 2014 letter prepared by Mr. Easter was in response to

Plaintiff requesting FMLA leave until August 11, 2014, a request that Mr. Easter

addressed and granted in that letter. As such, as of August 1, 2014, Plaintiff was still

8
on FMLA leave, and the evidence does not show, as a matter of law, that Defendant

interfered with that leave or took any action at all vis a vis Plaintiff between July 8,

2014 and August 1, 2014, when Plaintiff resigned. The Court finds it significant that

Plaintiff never submitted any certification from his physician that Plaintiff could

return to work – not prior to Plaintiff’s resignation on August 1, 2014, nor at any time

thereafter. In the absence of a certification from Plaintiff’s physician that Plaintiff

could return to work, a reasonable jury could have determined that Plaintiff was not

eligible to be reinstated by Defendant. 

Third, there was evidence that Plaintiff could not work with many of

Defendant’s representatives that he would have had to interact with, such that a

reasonable jury could have determined that Plaintiff never could have returned to

work for Defendant. Fourth, there was evidence that Plaintiff cited many reasons in

2014 for not returning to work, but none of those cited reasons complained that

Plaintiff would have to undergo a fitness-for-duty evaluation. Fifth, a reasonable jury

could have determined that the working conditions to which Plaintiff was subjected

were not so intolerable that Plaintiff was forced to resign.

For the reasons set forth above, the Court concludes that competing evidence

admitted at trial precludes the Court from finding, as a matter of law, that: (a)

Defendant conditioned Plaintiff’s return to work on undergoing a fitness for duty

9
evaluation before being reinstated; or (b) Plaintiff was constructively discharged on

August 1, 2014, such that Defendant violated the FMLA by interfering with Plaintiff’s

rights thereunder. For the same reasons, the Court finds that the jury verdict was not

against the great weight of the evidence, and the Court concludes that the jury verdict

in favor of Defendant on Plaintiff’s FMLA claim should not be set aside. The Court

denies Plaintiff’s Renewed JMOL Motion, both with respect to his motion for

judgment as a matter of law and his motion for a new trial. 

V. CONCLUSION

For the reasons stated above,

IT IS HEREBY ORDERED that Plaintiff’s Renewed Motion for Judgment as

Matter of Law [Dkt. No. 87] is DENIED.

IT IS ORDERED.

S/Denise Page Hood 

Denise Page Hood

Chief Judge, United States District Court

Dated: May 31, 2018

I hereby certify that a copy of the foregoing document was served upon counsel of

10
record on May 31, 2018, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

11