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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

YASIN REEDER, 

Plaintiff, 

v. 

COUNTY OF WAYNE, 

Defendant. 

 /

Case No. 15-cv-10177 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

DAVID R. GRAND

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT [25] 

I. INTRODUCTION

On January 16, 2015, Yasin Reeder (“Plaintiff”) filed a Complaint and 

Demand for Trial by Jury against Wayne County (“Defendant”). See Dkt. No. 1, p. 

1 (Pg. ID No. 1). On January 30, 2015, Plaintiff submitted an Amended Complaint, 

alleging ten violations of state and federal law: violations of the Family Medical 

Leave Act (FMLA) (Counts I and II); violations of the Americans with Disabilities 

Amendments Act (ADA) (Counts III and IV); violations of Title VII of the Civil 

Rights Act of 1964 (“Title VII”) (Counts V and VI); violations of Michigan’s 

Persons with Disabilities Civil Rights Act (PWDCRA) (Counts VII and VIII); and 

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violations of Michigan’s Elliott-Larsen Civil Rights Act (Counts IX and X). Dkt. 

No. 3, pp. 10–22 (Pg. ID No. 30–42). 

Presently before the Court is Defendant’s Motion for Summary Judgment 

[25]. The matter is fully briefed and a hearing was held on April 5, 2016, where 

both parties presented their arguments on the Motion. For the reasons discussed 

herein, the Court will GRANT in part and DENY in part Defendant’s Motion for 

Summary Judgment. 

II. BACKGROUND

From May 24, 1999 to May 7, 2014, Plaintiff worked as a Police Officer for 

the Wayne County Sheriff’s Office. Dkt. No. 27, pp. 11, 17 (Pg. ID No. 369, 375). 

In his position, Plaintiff provided inmate security in Wayne County’s jail facilities. 

Dkt. No. 25, p. 12 (Pg. ID No. 161). Plaintiff was required to work a minimum 

amount of overtime each week, six minutes of roll call prior to each shift, and was 

also subject to mandatory overtime due to the jail’s understaffing. Id. This required 

overtime was covered by Plaintiff’s collective bargaining agreement. Id. Officers 

in Plaintiff’s position did not have the right to refuse overtime assignments. Id. at 

14. Any refusal to work mandatory overtime would result in the officer being 

issued a Conduct Incident Report (“CIR”), documenting the officer’s refusal to 

follow a direct order. Id. 

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 In the last 24 months of his position, Plaintiff was disciplined 13 times for 

rule violations, culminating with his termination. Dkt. No. 25-2, pp. 2–3 (Pg. ID 

No. 183–84). In August 2012, Plaintiff received a one-day suspension, which was 

held in abeyance, for insubordination related to leave time. Id. at 2. He received 

another suspension in October 2012 for insubordination, conduct, and 

unsatisfactory performance. Id. Three months later, in January 2013, Plaintiff was 

orally reprimanded for a leave time and attendance issue. Id. Then in April 2013, 

Plaintiff was given a written reprimand, followed by a two-day suspension for a 

subsequent violation, which was held in abeyance, for insubordination and 

unsatisfactory conduct. Id. Plaintiff’s third rule violation in April 2013 was a 

written reprimand for leave time and attendance. Id. In July 2013, Plaintiff 

received another written reprimand for unsatisfactory performance. Id. 

 The repercussions of rule violations gradually increased. In September 2013, 

Plaintiff was suspended without pay for unsatisfactory performance. Id. A month 

later, in October 2013, Plaintiff reported to his lieutenant that he was experiencing 

discomfort and feeling “sick to his stomach” as a result of conflict with a 

coworker.1

 Dkt. No. 25-14, p. 4 (Pg. ID No. 285). Plaintiff was suspended again 

 

1

 The Arbitration Award describes the conflict as follows: A coworker had filed 

harassment charges against Plaintiff, while Plaintiff alleged that she had assaulted 

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that month, for three days without pay, again for insubordination and 

unsatisfactory performance. Dkt. No. 25-2, p. 2 (Pg. ID No. 183). Around this 

time, Plaintiff sought counseling services through the Employee Assistance 

Program (EAP). Dkt. No. 27-15, p. 8 (Pg. ID No. 493). He was not diagnosed with 

depression or anxiety at that time and did not notify anyone in his command that he 

was seeking counseling. Id. 

In November 2013, Plaintiff was issued a written reprimand for refusal to 

follow direct orders and use of sick time that Plaintiff had not earned/did not have. 

Dkt. No. 25-14, p. 4 (Pg. ID No. 285); Dkt. No. 25-14, p. 4 (Pg. ID No. 285).

Plaintiff was suspended for eight days without pay in January 2014, for nine 

instances where he refused overtime shifts in December 2013 and January 2014. 

Dkt. No. 25-14, p. 4 (Pg. ID No. 285). Four days after his January suspension, 

Plaintiff produced the first note from a physician, detailing that he suffered from 

atypical chest pain, situational anxiety, and work-related stress, and restricting 

Plaintiff to work no more than eight hours per day. Dkt. No. 25, p. 13 (Pg. ID No. 

162). Plaintiff claims that he was also manifesting physical symptoms, including 

 

and harassed him, creating a hostile work environment. Dkt. No. 25-14, p. 4 (Pg. 

ID No. 285). After Plaintiff complained about the situation, both he and his 

coworker were transferred from their assignments at Jail/Division I. Id. Plaintiff 

was moved to Jail/Division 2, while his coworker was moved to Jail/Division 3. Id. 

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high blood pressure, hair loss, loss of appetite, sleeplessness, vomiting, lightheadedness, and dizziness.2

 Dkt. No. 27, pp. 12–13 (Pg. ID No. 370–71); Dkt. No. 

27-3, p. 4 (Pg. ID No. 413). Plaintiff’s physician recommended he visit a 

psychiatrist and psychologist, which he visited a couple weeks later and continued 

to see three to four times a month until he was terminated. Dkt. No. 27-3, p. 4 (Pg. 

ID No. 413). 

Plaintiff submitted the January 27, 2014 doctor’s note to personnel, where an 

employee allegedly time-stamped it,3

 made a copy for Plaintiff’s file, and returned 

 

2

 There are some troubling inconsistencies in Plaintiff’s proffered reasons for 

his medical conditions. For instance, he argues that he “suffered from anxiety and 

depression, beginning with the murder of his brother and exacerbated by the 

suicide of an inmate” at the jail. Dkt. No. 27, p. 12 (Pg. ID No. 370) (emphasis 

added). However, Plaintiff’s own testimony states that he did not witness the 

suicide until April 2014, over a year after he started refusing mandatory overtime 

and just one month before he was terminated. See Dkt. No. 27-15, p. 4 (Pg. ID No. 

489). Furthermore, although Plaintiff’s brother went missing in October 2013, his 

body was identified after Plaintiff had already been terminated. Id. Plaintiff had 

been refusing mandatory overtime for months before his brother even went 

missing. See Dkt. No. 25-2, pp. 2–3 (Pg. ID No. 183–84). Accordingly, the suicide 

Plaintiff witnessed and the murder of Plaintiff’s brother do little to explain 

Plaintiff’s symptoms appearing prior to April 2014. Nevertheless, given the lenient 

standard the Sixth Circuit utilized in Festerman, the Court finds that a reasonable 

jury may still find in Plaintiff’s favor based on the fact that his depression and 

anxiety could have resulted from other causes, such as the conflict with his 

coworker or his father’s cancer. 

3 Defendant disputes that a time-stamp on a document is evidence of 

submission, since the time-stamp is left on the desk of the personnel office. Dkt. 

No. 25, p. 19, n.24 (Pg. ID No. 168). Defendant submitted an unsigned affidavit 

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the original note to Plaintiff without further instruction. Id. It is undisputed that 

Plaintiff never received or filled out the required paperwork to take a leave of 

absence under the FMLA, although Plaintiff had previously completed FMLA 

leave paperwork for a leave of absence following a car accident in 2008.4

 Dkt. No. 

27-3, p. 3 (Pg. ID No. 412). Plaintiff claims that he also submitted a note from his 

psychiatrist to personnel in February 2014. Dkt. No. 27-5, p. 2 (Pg. ID No. 420). 

The February 14, 2014 note, which does not bear a time-stamp from the personnel 

office, merely states that Plaintiff “is under [the doctor’s] care for a medical 

problem,” “is limited to no more than 8 hours per day in the workplace,” and will 

be reevaluated on “February 11, 2014.”5 Id. Plaintiff later submitted a note with 

similar language to the second doctor’s note, dated on March 4, 2014. This third 

 

from the employee who handled FMLA matters, stating he worked the days that 

Plaintiff allegedly submitted the medical documents and that there was no record 

of Plaintiff submitting the documents. Dkt. No. 25-8, pp. 2–3 (Pg. ID No. 244–45). 

It appears that Defendant is implying that Plaintiff stamped the documents himself 

and never submitted them, which he argues is false while conceding he did selfstamp one of the documents. See Dkt. No. 27, pp. 22–23 (Pg. ID No. 380–81); Dkt. 

No. 27-15, p. 9 (Pg. ID No. 494). 

4

 Plaintiff claims to have no memory of seeing or signing the documents in 

2008 due to the medication he was on at the time. Dkt. No. 27-3, p. 3 (Pg. ID No. 

412). 

5

 No explanation was provided as to why the date when Plaintiff’s physician 

would reexamine him in the future—February 11, 2014—occurred three days 

before the letter was even written on February 14, 2014. Additionally, there was no 

explanation as to why this doctor’s note, which Plaintiff alleges he submitted, did 

not bear the same time-stamp as the other two notes. 

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note, which bore a time-stamp from personnel, stated that Plaintiff “is under [the 

doctor’s] care for a medical problem” and “is limited to no more than 8 hours per 

day in the workplace until further notice.” Dkt. No. 27-5, p. 2 (Pg. ID No. 420). 

Plaintiff was suspended again for eight days without pay in March 2014, for 

refusing mandatory overtime on six occasions in January through March 2014. 

Dkt. No. 25-2, p. 2 (Pg. ID No. 183). A disciplinary hearing in March or February 

marked the first time that Plaintiff informed Deputy Chief Tonya Guy that he was 

on medication and could not work overtime, explaining that his medical 

information was in his personnel file. See Dkt. No. 25-14, pp. 21–22 (Pg. ID No. 

302–03); Dkt. No. 27-3, p. 5 (Pg. ID No. 414). Plaintiff refused to show his 

superiors a copy of the medical documentation.6 Id. Guy was skeptical of the 

veracity of Plaintiff’s medical condition because she thought he wanted to evade 

the day shift to rest before his other job coaching football at Wayne State 

University. Dkt. No. 25-15, p. 9 (Pg. ID No. 324). Guy attempted to corroborate 

Plaintiff’s explanation by looking in Plaintiff’s personnel file for his medical 

documentation, but she was unable to locate it since she was not aware it would be 

 

6 Plaintiff believed that it would be a HIPAA violation for his medical 

information to be shared with Guy. Dkt. No. 27, p. 17 (Pg. ID No. 375). Although 

Plaintiff does provide evidence of previous instances where medical conditions 

were shared, he alleges concern that sharing his medical documentation with his 

supervisors would lead to others learning of his condition. Id. 

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stored in a separate file. Id. at 19–20. Had Plaintiff shown Guy his medical 

documentation, Guy asserts that Plaintiff would not have been terminated. Id. at 

20. 

On April 14, 2014, Plaintiff’s police powers were suspended and his gun and 

badge were taken away. Dkt. No. 27-3, pp. 6 (Pg. ID No. 415). Plaintiff left work 

early that day, telling Lieutenant Jason Bates that he did not feel well and was 

overwhelmed. Id. Plaintiff filed a charge with the Michigan Department of Civil 

Rights on April 21, 2014, stating that he had requested reasonable accommodation 

on April 13, 2014 and had not been accommodated because of his race and 

disability. Dkt. No. 27-14, p. 2 (Pg. ID No. 485). 

Meanwhile, Plaintiff claims that several other employees were allowed to 

exercise FMLA rights to avoid working mandatory overtime. Dkt. No, 27, p. 11–

12 (Pg. ID No. 369–70). Defendant identified four employees who were eligible 

under the FMLA to be exempt from ordered overtime: Rachel Lebendig, Arnold 

Oz, Jeremy Cady, and Robert Festerman. Dkt. No. 27-2, p. 7 (Pg. ID No. 403). 

Guy identified one of the four as a white female and another as a white male. Dkt. 

No. 27-17, pp. 7–8 (Pg. ID No. 515–16). Bates identified a third as a white male, 

but also identified two more officers currently receiving FMLA who were eligible 

to avoid mandatory overtime. Dkt. No. 27-16, p. 10 (Pg. ID No. 508). Both of the 

new officers Bates identified were African-American females. Id. Additionally, 

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Plaintiff claims another officer, Corporal Nicole Summers, who is white and had 

cancer, was allowed to work the front desk without overtime. Dkt. No. 27-3, p. 6 

(Pg. ID No. 415). Defendant explained that Summers was assigned to the front 

desk because she was the highest seniority bidder, that she did in fact work 

overtime, and that she had completed the required FMLA forms. Dkt. No. 25, p. 30 

(Pg. ID No. 179). 

Finally, on May 6, 2014, Defendants terminated Plaintiff for two instances 

in March and April 2014 where he refused mandatory orders to work overtime. 

Dkt. No. 25-2, p. 2 (Pg. ID No. 184). Plaintiff’s union pursued Plaintiff’s 

grievances against Defendant to arbitration in September 2014. The arbitration 

award, issued in November 2014, noted that Plaintiff’s transfer to Division Two 

lasted longer than it should have, but otherwise denied all of Plaintiff’s grievances. 

Dkt. No. 25-14, pp. 15, 33–34 (Pg. ID No. 296, 314–15). The arbitrator found that 

Defendant had just cause to discipline Plaintiff for violating the rules and that the 

discipline issued had been appropriate. Id. at 20–21. Additionally, the arbitrator 

found Plaintiff’s testimony to be “incredible” and that the medical documentation 

Plaintiff submitted did not explain sufficiently enough why he could work eight 

hours but no more. Id. at 24, 29. 

It is with these contrasting positions regarding the factual background of this 

case that the Court must consider the instant Motion for Summary Judgment.

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III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall 

be granted if ‘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.’ ” Cehrs v. Ne. Ohio Alzheimer’s 

Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The court must view the facts, 

and draw reasonable inferences from those facts, in the light most favorable to the 

non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No 

genuine dispute of material fact exists where the record “taken as a whole could 

not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. 

Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court 

evaluates “whether the evidence presents a sufficient disagreement to require 

submission to a jury or whether it is so one-sided that one party must prevail as a 

matter of law.” Anderson, 477 U.S. at 251–52. 

IV. DISCUSSION

Defendant argues that it is entitled to summary judgment on all of Plaintiff’s 

claims. See Dkt. No. 25, pp. 2–3 (Pg. ID No. 151–52). Defendant claims that 

Plaintiff has failed to make a prima case under the statutes for Counts I–II, IV–VI, 

and VIII–X. Id. Defendant also argues that Counts III and VII should be dismissed 

because Plaintiff is not disabled as defined by the ADA and PWDCRA. Id. at 2. 

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The Court finds that Defendant is entitled to summary judgment on Counts V and 

IX, but not on Counts I–IV, VI–VIII, and X. A detailed analysis is below. 

1. Plaintiff’s FMLA Claims 

The FMLA affords an eligible employee up to twelve weeks of leave within 

a twelve-month period if the employee suffers from “a serious health condition” 

that makes him or her unable to perform the functions of his or her position. 29 

U.S.C. § 2612(a)(1)(D); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420 

(6th Cir. 2004).“[A]n illness, injury, impairment, or physical or mental condition 

that involves . . . continuing treatment by a health care provider” qualifies as a 

“serious health condition.” 29 U.S.C. § 2611. “An employee with a serious health 

condition may take intermittent leave or establish a reduced work schedule under 

the FMLA without fear of adverse employment actions taken by the employer as a 

result.” Festerman v. Cty. of Wayne, 611 F. App’x 310, 314 (6th Cir. 2015). 

“Intermittent leave is leave taken in separate blocks of time for a single qualifying 

reason.” Adams v. Honda of Am. Mfg., Inc., 111 Fed. App’x. 353, 355 (6th Cir. 

2004). 

The Sixth Circuit recognizes two distinct theories for FMLA recovery: 

(1) the “entitlement” or “interference” theory, under 29 U.S.C. § 2615(a)(1); and 

(2) the “retaliation” or “discrimination” theory, under 29 U.S.C. § 2615(a)(2). 

Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Since Plaintiff 

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asserts both interference and retaliation claims under the FMLA, the Court will 

address each in turn. 

a. Plaintiff’s FMLA Interference Claim 

In Count I, Plaintiff asserts that Defendant’s actions interfered with 

Plaintiff’s right to FMLA leave, as prohibited by the statute. Dkt. No. 3, p. 12 (Pg. 

ID No. 32). 

The FMLA prohibits acts by an employer that “interfere with, restrain, or 

deny the exercise of or the attempt to exercise, any right provided [by the FMLA].” 

29 U.S.C. § 2615(a)(1). Unlawful interference includes “refusing to authorize 

FMLA leave” or “discouraging an employee from using [FMLA] leave.” 29 C.F.R. 

§ 825.220(b). To establish a prima facie case of FMLA interference, an employee 

must show that: 

(1) the employee was an eligible employee; 

(2) the defendant was an employer as defined under the FMLA; 

(3) the employee was entitled to leave under the FMLA; 

(4) the employee gave the employer notice of his intention to take 

leave; and 

(5) the employer denied the employee FMLA benefits to which he 

was entitled. 

Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012). 

In the present case, Defendant does not dispute that Plaintiff was an eligible 

employee and that Defendant qualifies as a FMLA employer. Dkt. No. 25, p. 17 

(Pg. ID No. 166). Additionally, for the purposes of this motion, Defendant assumes 

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that Plaintiff suffers from a FMLA qualifying serious condition. Id. This claim 

then turns on whether Plaintiff provided sufficient notice to Defendant regarding 

his intention to take leave and whether Defendant denied Plaintiff FMLA benefits. 

i. Whether Plaintiff Gave Defendant Notice Of His Intention To 

Take Leave 

“[T]o invoke the protection of the FMLA, an employee must provide notice 

and a qualifying reason for requesting the leave.” Wallace v. FedEx Corp., 764 

F.3d 571, 586 (6th Cir. 2014) (alteration in original) (quoting Brohm v. JH Props., 

Inc., 149 F.3d 517, 523 (6th Cir. 1998)). “When an employee seeks leave for the 

first time for a FMLA-qualifying reason, the employee need not expressly assert 

rights under the FMLA or even mention the FMLA.”7

 29 C.F.R. § 825.303(b). 

Instead, the FMLA requires only that the employee “provide sufficient information 

for an employer to reasonably determine whether the FMLA may apply to the 

leave request.” Id. “The employee’s burden is not heavy.” Wallace, 764 F.3d at 

586. Rather, it is the employer who bears the burden of obtaining any additional 

required information that may be needed to establish eligibility. 29 C.F.R. 

§ 825.303(b). 

 

7

 Although this is not the first time Plaintiff has requested leave under the 

FMLA, there is a dispute of fact as to whether Plaintiff has any memory of 

requesting FMLA leave while under the influence of medication in 2008. 

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 The sufficiency of notice “is an intensely factual determination.” Donald, 

667 F.3d at 761. Although merely calling in sick is insufficient to trigger an 

employer’s FMLA obligations, 29 C.F.R. § 825.303(b), a note from the 

employee’s physician may provide adequate notice. See Brenneman, 366 F.3d at 

423 (noting that a doctor’s note that details the qualifying medical condition that 

caused an employee’s absence is generally sufficient notice). However, “[a] 

doctor’s note that fails to state with specificity the condition behind the prescribed 

leave or the treatment to be administered . . . is insufficient on its own to provide 

notice to an employer of the employee’s request for FMLA leave.” Festerman, 611 

F. App’x at 315. Where a doctor’s note does not disclose the condition giving rise 

to a requirement of limited work hours or prescribed treatment, the district court 

should look to the surrounding circumstances for additional context and evidence 

of a potential FMLA-qualifying condition. Id. at 315–16. 

 Here, Plaintiff allegedly submitted three separate medical documents 

regarding his condition and an inability to work the mandatory overtime to the 

personnel office, as directed by Bates. Although the February and March doctor’s 

notes were overly vague in that they only listed a restriction—that Plaintiff was not 

to work more than eight hour workdays—the January doctor’s note listed specific 

conditions and noted that Plaintiff was receiving continuing treatment. Dkt. No. 

27-4, p. 2 (Pg. ID No. 418) (disclosing Plaintiff’s conditions as “atypical chest 

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pain,” “sit[uational] anxiety,” and “work related stress” and restricting Plaintiff to 

work no more than eight hours). See also Dkt. No. 27-5, p. 2 (Pg. ID No. 420); 

Dkt. No. 27-6, p. 2 (Pg. ID No. 422). Based off of the January note alone,8

 the 

notice that Plaintiff provided could be considered sufficient under 29 C.F.R. 

§ 825.303(b), shifting the burden of obtaining further information and supplying 

the applicable leave forms9

 onto Defendant. 

Furthermore, although Plaintiff did refuse to share his medical 

documentation with Bates and Guy, he did verbally inform them of his submission 

of medical documentation regarding his restriction during disciplinary hearings for 

refusal to work overtime. Defendant’s argument that it was Plaintiff’s job to 

follow-up on his submission of medical documentation misreads 29 C.F.R. 

§ 825.303(b), which explicitly places the onus on the employer to obtain additional 

required information. While “it is undisputed that Plaintiff did not complete the 

necessary forms required by Defendant for an approved FMLA leave,” Dkt. No. 

25, p. 23 (Pg. ID No. 172), it was Defendant who failed to provide those forms to 

 

8

 If Defendant intends to claim that it never received the January doctor’s note, 

such a dispute of material fact is to be resolved by a jury. 

9 Defendant’s brief provides the employer’s policy that “[i]f an employee 

presented documents such as Plaintiff’s documents, the normal process was that 

the employee would be handed a packet of [FMLA] forms to be completed.” Dkt. 

No. 25, p. 21 (Pg. ID No. 170). 

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Plaintiff after he submitted medical documentation on three separate occasions. 

Plaintiff was not required to unequivocally request FMLA forms. 

Accordingly, Plaintiff has raised a genuine issue of material fact as to 

whether he satisfied the FMLA notice requirements with the submission of his 

January 2014 doctor’s note. 

ii. Whether Defendant Denied Plaintiff FMLA Benefits To Which 

He Was Entitled 

The final element a FMLA interference claim requires the employee to show 

that his or her employer denied the employee FMLA benefits to which he or she 

was entitled. Donald, 667 F.3d at 761. Because the FMLA is not a strict liability 

statute, employees seeking relief under the interference theory must establish that 

their employer’s violation caused them harm. Edgar v. JAC Products, Inc., 443 

F.3d 501, 507–08 (6th Cir. 2006). Termination is one such harm that an employee 

can present. See Arban v. W. Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003). 

Nevertheless, an employer may dismiss an employee lawfully, preventing that 

employee from exercising his or her rights under the FMLA, “if the dismissal 

would have occurred regardless of the employee’s request for or taking of FMLA 

leave.” Id. 

 Although the “mere issuance of CIRs and scheduling of an administrative 

review fail as a matter of law to establish harm of the kind contemplated by the 

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FMLA,” Festerman, 611 F. App’x at 318, Plaintiff also presented evidence of 

harm in the form of termination from his position. Thus, Defendant must provide 

“a legitimate reason unrelated to the exercise of FMLA rights for engaging in the 

challenged conduct.” See Edgar, 443 F.3d at 508. 

 Defendant’s stated reason for terminating Plaintiff was his repeated 

insubordination, for which he was subject to progressively greater disciplinary 

action. Dkt. No. 25, p. 23–24 (Pg. ID No. 172–73). However, this insubordination 

was based solely off the fact that Plaintiff refused to work the mandatory 

overtime.10 See Dkt. No. 27-16, p. 3 (Pg. ID No. 501) (providing testimony from 

Plaintiff’s supervisor that Plaintiff “did what he was supposed to do,” with the 

exception of following orders to work overtime); Dkt. No. 27-17, p. 12 (Pg. ID No. 

520) (stating that the reasons for Plaintiff’s discipline were all linked to Plaintiff’s 

refusal to work the day shift). 

Plaintiff certainly qualifies as insubordinate for his refusal to work overtime 

prior to his medical restrictions going into effect at the end of January, since at that 

point in time the restrictions were self-imposed and developed without continuing 

treatment by a health care provider. However, the decision to terminate Plaintiff 

 

10 Plaintiff alleges that an isolated incident where a supervisor told him to “quit 

being a baby” is direct evidence of retaliatory animus. The Court does not find that 

such a comment is sufficient to qualify as direct evidence of any animus. 

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was not prior to Plaintiff’s attempt to utilize the FMLA. See Wallace, 764 F.3d at 

590 (noting that, in some cases, “cause to dismiss the plaintiff before he requested 

leave” “would be enough to allow an employer to fire an employee despite the 

FMLA.”) (emphasis added). The Sixth Circuit has stated that “when the absences 

and cause for discharge relate directly to the FMLA leave,” “there is no legitimate 

and independent reason for dismissal.” Id. Accordingly, since Defendant’s reason 

for terminating Plaintiff was for his refusal to work mandatory overtime, which 

appears to be directly linked with FMLA leave, the Court finds that Plaintiff 

provided sufficient evidence to establish a genuine issue of material fact as to 

whether Defendant interfered with Plaintiff’s right to FMLA leave. 

b. Plaintiff’s FMLA Retaliation Claim 

Plaintiff asserts in Count II that Defendant’s discipline and termination of 

Plaintiff for taking medical leave was retaliatory and a violation of the FMLA. Dkt. 

No. 3, p. 13 (Pg. ID No. 33). 

 The FMLA prohibits employers from discharging or discriminating against 

any individual for opposing practices made unlawful by the FMLA. 29 U.S.C. 

§ 2615(a)(2). The Sixth Circuit applies the McDonnell Douglas burden-shifting 

framework to retaliation claims that turn on circumstantial evidence. Festerman, 

611 F. App’x at 319; see McDonnell Douglas Corp. v. Green, 411 U.S. 792 

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(1973). To establish a prima facie case of FMLA retaliation, an employee must 

show: 

(1) the employee was engaged in an activity protected by the FMLA; 

(2) the employer knew that the employee was exercising his or her 

rights under the FMLA; 

(3) after learning of the employee’s exercise of FMLA rights, the 

employer took an employment action adverse to him or her; and 

(4) there was a causal connection between the protected FMLA 

activity and the adverse employment action. 

Donald, 667 F.3d at 761. “A plaintiff’s burden in establishing a prima facie case is 

not intended to be an onerous one.” Skrjanc v. Great Lakes Power Serv. Co., 272 

F.3d 309, 315 (6th Cir. 2001). A successfully pleaded prima case of retaliation 

results in the burden being shifted onto the employer to present a legitimate, nondiscriminatory reason for its decision. Donald, 667 F.3d at 761. If the employer 

adequately carries this burden, then the employee must show that the employer’s 

stated reasons are mere pretext for unlawful discrimination in order to survive 

summary judgment. Id. at 761–62. 

i. Whether Plaintiff Was Engaged In A FMLA Protected Activity 

 Here, Defendant terminated Plaintiff slightly more than three months after 

he first submitted medical documentation that he was restricted to working no 

more than eight hours per workday. From January 28, 2014—the date Plaintiff 

turned in the first doctor’s note—to May 6, 2014—the date of Plaintiff’s 

termination—Plaintiff was documented as refusing mandatory overtime at least 

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seven times. Dkt. No. 25-2, p. 2 (Pg. ID No. 183). Plaintiff asserts that his refusal 

to work mandatory overtime equates to asserting a right to work a reduced 

schedule11 under the FMLA. Based on the facts presented, a reasonable jury could 

find that Plaintiff was engaged in an activity protected by the FMLA. 

ii. Whether Defendant Knew Plaintiff Was Exercising His FMLA 

Rights 

 Regarding the second element of a prima facie FMLA retaliation claim, the 

Court has already determined that Plaintiff provided sufficient evidence of notice 

to Defendant of his FMLA request, in the form of his request for reduced work 

hours via submission of the January 28, 2014 doctor’s note, to avoid summary 

judgment. Accordingly, the Court’s analysis will focus on the last two elements 

necessary to establish a prima facie case of FMLA retaliation. 

iii. Whether Defendant Took An Adverse Employment Action 

Against Plaintiff 

 To satisfy the third element of a prima facie case, Plaintiff must present 

evidence that Defendant took an employment action adverse to him after learning 

 

11 The FMLA does not limit eligible employees to requesting only periods of 

block leave, but also allows employees to take intermittent or reduced scheduled 

work. 29 C.F.R. § 825.203. “A reduced leave schedule is a leave schedule that 

reduces an employee’s usual number of working hours per workweek, or hours per 

workday.” 29 C.F.R. § 825.202. 

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of his exercise of FMLA rights. Donald, 667 F.3d at 761. The evidence presented 

indicates that Defendant made the decision to terminate Plaintiff after the 

submission of his medical documents and requests for a restricted workday. 

Accordingly, the third factor of the prima facie case of FMLA retaliation may also 

be considered to be satisfied, for the purposes of this motion. 

iv. Whether There Was A Causal Connection Between Plaintiff’s 

FMLA Activity And The Adverse Employment Action 

 The final factor requires Plaintiff to state sufficient evidence that a 

reasonable jury could find a causal connection between Plaintiff’s FMLA activity 

and the adverse action taken by Defendant. Donald, 667 F.3d at 761. As described 

above, in the FMLA interference analysis, Plaintiff has presented evidence that he 

was discharged for insubordination based directly on his request to work reduced 

hours, a form of FMLA leave. Thus, it is possible that a reasonable jury could find 

that Plaintiff’s attempt to take FMLA leave bore a causal connection to 

Defendant’s decision to terminate Plaintiff’s employment. 

v. Whether Defendant Articulated A Legitimate, NonDiscriminatory Reason For Terminating Plaintiff 

 Since all four of the prima facie factors have been shown to be satisfied, the 

burden then shifts to Defendant to provide a legitimate, non-discriminatory reason 

for why Plaintiff was terminated. Again, as discussed in the FMLA interference 

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analysis, Defendant’s proffered reason—Plaintiff’s insubordination—was based 

solely on his refusal of direct orders to work more than eight hours per workday. 

Defendant does not allege any other conduct, outside of refusing mandatory 

overtime, which resulted in disciple for insubordination. Therefore, the Court finds 

that Plaintiff has presented sufficient evidence from which a jury could conclude 

that he was terminated in retaliation for requesting FMLA leave. 

 The Court denies Defendant summary judgment on Plaintiff’s two FMLA 

claims. 

2. Plaintiff’s ADA and PWDCRA Discrimination Claims 

In Counts III and VII, Plaintiff alleges violations of the ADA, 29 U.S.C. 

§ 12102, and PWDCRA, MICH. COMP. LAWS § 37.1101, et seq., respectively. Dkt. 

No. 3, p. 13–15, 18–19 (Pg. ID No. 33–35, 38–39). The claims allege that 

Defendants discriminated against Plaintiff for his emotional disability in violation 

of state and federal law. Id. Resolution of Plaintiff’s ADA claim will generally 

resolve Plaintiff’s PWDCRA claim because the PWDCRA “substantially mirrors 

the ADA.” Donald, 667 F.3d at 764. Accordingly, the Court will evaluate 

Plaintiff’s ADA and PWDCRA claims together, under the ADA’s framework. 

Under Title I of the ADA, employers may not “discriminate against a 

qualified individual on the basis of disability in regard to job application 

procedures, the hiring, advancement, or discharge of employees, employee 

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compensation, job training, and other terms, conditions, and privileges of 

employment.” 42 U.S.C. § 12112(a). “The ADA defines ‘discriminate’ to include 

the failure to provide reasonable accommodation to an otherwise qualified 

individual with a disability, unless doing so would impose an undue hardship on 

the employer’s business.” Keith v. Oakland, 703 F.3d 918, 923 (6th Cir. 2013); 42 

U.S.C. § 12112(b)(5). 

A plaintiff may establish discrimination by direct or circumstantial evidence. 

Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 547–48 (6th Cir. 

2004). If the plaintiff fails to offer any direct evidence of discrimination, the court 

applies the three-step legal analysis set forth in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, the 

plaintiff bears the initial burden of establishing a prima facie case of 

discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 

(1981). If the plaintiff succeeds, the burden then shifts to the defendant to articulate 

a legitimate, nondiscriminatory reason for its action. Id. Should the defendant carry 

this burden, the plaintiff must then have the opportunity to prove by a 

preponderance of the evidence that the employer’s reasons are not its true reasons, 

but rather a pretext for discrimination. Id. 

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a. Whether Plaintiff Has Presented Sufficient Facts For A Trier Of 

Fact To Find A Prima Facie Case Of Disability Discrimination 

To make a prima facie case of disability discrimination, Plaintiff must 

demonstrate that: 

(i) he is disabled within the meaning of the ADA; 

(ii) he was otherwise qualified for the position, with or without 

reasonable accommodation; 

(iii) he suffered an adverse employment action; 

(iv) his employer knew or had reason to know of her disability; and 

(v) his position remained open while the employer sought other 

applicants or he was replaced. 

See Whitfield v. Tenn., 639 F.3d 253, 259 (6th Cir. 2011). 

i. Whether Plaintiff Qualifies as Disabled Under the ADA 

The ADA defines a disability as “a physical or mental impairment that 

substantially limits one or more major life activities of such individual,” “a record 

of such an impairment,” or “being regarded as having such an impairment.” 42 

U.S.C. § 12102(1). Major life activities include caring for oneself, eating, sleeping, 

concentrating, thinking, communicating, and working. 42 U.S.C. § 12102(2)(A). In 

the ADA Amendments Act of 2008, Congress added rules of construction that the 

definition of disability should “be construed in favor of broad coverage of 

individuals under this chapter, to the maximum extent permitted by the terms of 

this chapter.” 42 U.S.C. § 12102(4)(A). 

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“The determination of whether an impairment substantially limits a major 

life activity requires an individualized assessment.” 29 C.F.R. § 1630.2(j)(1)(iv). 

Courts are to broadly construe the term “substantially limits” in favor of expansive 

coverage, so that it is not a demanding standard. 29 C.F.R. § 1630.2(j)(1)(i). The 

assessment is made by comparing the ability of the individual to perform a major 

life activity, as compared to most people in the general population. 29 C.F.R. 

§ 1630.2(j)(1)(ii). 

Here, Defendant disputes that Plaintiff suffers from a disability as defined by 

the ADA. Plaintiff’s alleged disability is as follows: “a mental impairment that 

substantially limits one or more major life activity in that he suffered from a lack 

of appetite, restless nights, and could not work more than eight (8) hours per day.” 

Dkt. No. 3, p. 14 (Pg. ID No. 34). Stated differently, Plaintiff alleges that his 

depression and anxiety substantially limited his ability to eat, sleep, concentrate, 

and work. 

In the Sixth Circuit, an employee who is able to work full-time, but not 

overtime, is not substantially limited under the ADA in the major life area of 

working. Linser v. State of Ohio, Dep’t of Mental Health, 234 F.3d 1268 (6th Cir. 

2000) (holding that an inability to work more than eight hours per day did not 

constitute a disability). See also Smith v. Grattan Family Enterprises, LLC, No. 08-

CV-14314, 2009 WL 3627953, at *9 (E.D. Mich. Oct. 30, 2009) (“Moreover, the 

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Sixth Circuit has repeatedly held that an inability to work overtime is not a 

substantial limitation on the ability to work.”); Garlock v. Ohio Bell Tel. Co. Inc., 

No. 1:13CV2200, 2015 WL 5730737, at *5 (N.D. Ohio Sept. 29, 2015) (finding 

that a plaintiff’s inability to work overtime was insufficient to show a “substantial 

impairment of his ability to work, the ADAAA amendment not withstanding”). 

Accordingly, Plaintiff cannot succeed in claiming he is substantially limited in his 

ability to work. 

Nevertheless, Plaintiff has presented sufficient facts to show that his mental 

impairments may have substantially limited him in the areas of eating, sleeping, 

and concentrating, since he alleged that he suffered from symptoms including 

situational anxiety and atypical chest pain due to stress. Accordingly, since 

Plaintiff has established that a reasonable jury could find him to be disabled under 

the ADA or PWDCRA, he must next present facts that he was otherwise qualified 

for the position, with or without reasonable accommodation. 

ii. Whether Plaintiff Was Otherwise Qualified for His Position 

To establish a prima facie case of disability discrimination, Plaintiff must 

present evidence that he was “otherwise qualified” for his position—i.e., that he 

could perform the essential functions of the job—with or without reasonable 

accommodations. The ADA and its regulations provide guidelines for determining 

whether a job’s function is “essential.” Section 12111 specifies that “consideration 

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shall be given to the employer’s judgment as to what functions of a job are 

essential.” 42 U.S.C. § 12111(8). Additionally, the Code of Federal Regulations 

provides a non-exhaustive list of factors that may be considered in determining 

whether a particular function is essential within the meaning of the ADA: 

(i) The employer’s judgment as to which functions are essential; 

(ii) Written job descriptions prepared before advertising or interviewing 

applicants for the job; 

(iii) The amount of time spent on the job performing the function; 

(iv) The consequences of not requiring the incumbent to perform the 

function; 

(v) The terms of a collective bargaining agreement; 

(vi) The work experience of past incumbents in the job; and/or 

(vii) The current work experience of incumbents in similar jobs. 

29 C.F.R. § 1630.2(n)(3). 

“Whether a job function is essential is a question of fact that is typically not 

suitable for resolution on a motion for summary judgment.” Keith, 703 F.3d at 926. 

The court’s factual analysis “should be based upon more than statements in a job 

description and should reflect the actual functioning and circumstances of the 

particular enterprise involved.” Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th 

Cir. 1988). While an employer’s determination of what is essential should be given 

“consideration,” the Sixth Circuit has clarified that this consideration does not 

equate to “deference” or a strong presumption in the employer’s favor. Rorrer v. 

Stow, 743 F.3d 1025, 1042 (6th Cir. 2014). 

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At issue in this case is whether working more than eight hours per day was 

an essential function of Plaintiff’s position. Most of the facts presented suggest that 

mandatory overtime was an essential function of Plaintiff’s position, as required by 

his collective bargaining agreement. Dkt. No. 25-3, p. 2 (Pg. ID No. 202) 

(notifying employees that as of April 26, 2012, working a minimum of 40.5 hours 

per week and mandatory overtime were essential functions of the position). See 

Festerman, 611 F. App’x at 321 (noting that mandatory overtime was an essential 

job function at the Wayne County jail facilities in considering the plaintiff’s 

FMLA claims). However, because Plaintiff presented some evidence that other 

employees were allowed to be exempted from mandatory overtime due to 

disabilities, a question of fact remains and a jury may determine whether working 

overtime was truly an “essential” function. 

iii. Whether Plaintiff Suffered An Adverse Employment Action 

An adverse employment action is “a materially adverse change in the terms 

of [the employee’s] employment.” Kocsis v. Multi–Care Mgmt., Inc., 97 F.3d 876, 

885 (6th Cir.1996). “Termination from employment is an adverse employment 

action.” Barrett v. Lucent Techs., Inc., 36 F. App’x 835, 843 (6th Cir. 2002). 

It is not disputed that Plaintiff was terminated for his continued refusal of 

direct orders to work overtime. Dkt. No. 25, p. 25 (Pg. ID No. 163). Accordingly, 

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Plaintiff has satisfied this prong of establishing a prima facie case of disability 

discrimination. 

iv. Whether Defendant Knew Or Had Reason To Know Of 

Plaintiff’s Disability 

The Sixth Circuit has held that “an employer cannot be said to know or have 

reason to know of an employee’s disability where that employee returns to work 

without restriction or request for accommodation. The natural assumption in such a 

case is that the employee is fully fit for work.” Leeds v. Potter, 249 F. App’x 442, 

449 (6th Cir. 2007) (quoting Hubbs v. Textron, Inc., 2000 WL 1032996, at *2, 

2000 U.S. App. LEXIS 30465, at *7 (6th Cir. 2000)). 

In the present case, Plaintiff’s direct supervisors, who reprimanded him on 

numerous occasions for his refusal of direct orders to work overtime, may not have 

had actual knowledge of his disability. However, there is certainly an issue of fact 

as to whether they had reason to know of Plaintiff’s disability, as Plaintiff 

presented evidence that he submitted numerous doctors’ notes, listing restrictions, 

and verbally told them he had an unspecified medical condition that prevented him 

from working overtime. This factor is also deemed satisfied for the purposes of 

summary judgment. 

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b. Whether Defendant Articulated A Legitimate, NonDiscriminatory Reason 

As detailed in the FMLA analysis above, Defendant’s proffered reason for 

terminating Plaintiff was Plaintiff’s repeated refusal of direct orders to work 

mandatory overtime. Since Plaintiff’s requested accommodation for his disability 

was to not work mandatory overtime, a reasonable jury could find that Defendant’s 

reason for firing Plaintiff was based solely off of the accommodations Plaintiff 

requested. Accordingly, the Court finds that Defendant has not provided a 

legitimate, non-discriminatory reason for the adverse employment action against 

Plaintiff. 

Drawing all reasonable inferences in Plaintiff’s favor, there has been 

sufficient evidence presented to demonstrate an issue of material fact as to whether 

Plaintiff was subject to disability discrimination, in violation of the ADA and 

PWDCRA. The Court will not grant summary judgment to Defendant on 

Plaintiff’s disability discrimination claims. 

3. Plaintiff’s Title VII and ELCRA Discrimination Claims 

Plaintiff alleges in Counts V and IX that Defendant violated Title VII of the 

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a), and the ELCRA, 

MICH. COMP. LAWS § 37.2202. Dkt. No. 3, p. 16–17, 20–21 (Pg. ID No. 36–37, 

40–41). The claims argue that Defendants discriminated against Plaintiff because 

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of his race—African American—while providing accommodations to similarly 

situated Caucasian employees. Id. Since discrimination claims under ELCRA and 

similar claims under Title VII share the same evidentiary framework, the Court 

will analyze Plaintiff’s Title VII and ELCRA race discrimination claims together. 

See Megivern v. Glacier Hills Inc., 519 F. App’x 385, 395 (6th Cir. 2013); 

Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003). 

Under Title VII, it is unlawful from an employer to “discharge any 

individual, or otherwise to discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–

2(a)(1). “The Michigan Elliott–Larsen Civil Rights Act forbids like conduct.” 

Kienzle v. Gen. Motors, LLC, 903 F. Supp. 2d 532, 547 (E.D. Mich. 2012). 

In the present case, Plaintiff alleges disparate treatment based on his race. 

“The ultimate question in every employment discrimination case involving a claim 

of disparate treatment is whether the plaintiff was the victim of intentional 

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 

(2000). A plaintiff bringing a Title VII employment discrimination claim must 

present either direct evidence of discrimination, or circumstantial evidence that 

allows for an inference of discriminatory treatment. Johnson v. Kroger Co., 319 

F.3d 858, 864–65 (6th Cir. 2003). Since Plaintiff has not presented any direct 

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evidence of discriminatory treatment, the Court must look to whether he has 

presented sufficient circumstantial evidence. 

Like the FMLA and ADA, Title VII claims based on circumstantial evidence 

also utilize the McDonnell Douglas burden-shifting approach. Id. at 865–66. 

Plaintiff is responsible for presenting a prima facie case of unlawful 

discrimination, which Defendant may rebut by articulating a legitimate, 

nondiscriminatory reason for the challenged action. Id. at 866. If Defendant 

satisfies this burden, then Plaintiff must prove that Defendant’s proffered reason 

was “actually a pretext to hide unlawful discrimination.” Id. 

a. Whether Plaintiff Has Presented Sufficient Facts For A Trier Of 

Fact To Find A Prima Facie Case Of Racial Discrimination 

Plaintiff establishes a prima facie case of racial discrimination by showing 

that: (1) he is a member of a protected group; (2) he was subject to an adverse 

employment decision; (3) he was qualified for the position in question; and (4) he 

was treated differently than similarly situated non-protected employees. Russell v. 

Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008). 

Here, Defendant concedes that Plaintiff is a member of a protected group 

and that his discipline and termination qualify as adverse employment actions. Dkt. 

No. 25, p. 29 (Pg. ID No. 178). However, Defendant argues that Plaintiff was not 

qualified for his position, which included the essential functions of following 

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orders and working mandatory overtime, and that Plaintiff cannot demonstrate that 

he was treated less favorably than similarly situated employees outside the 

protected class. Id. 

i. Whether Plaintiff Was Qualified for His Position 

As the Court previously analyzed whether Plaintiff was qualified for the 

position under the McDonnell Douglas framework with regard to his disability 

discrimination claims, such analysis will not be replicated again here. Accordingly, 

for the purpose of this motion, the Court will assume that Plaintiff satisfies this 

element of his prima facie case of racial discrimination. 

ii. Whether Plaintiff Was Treated Differently Than Similarly 

Situated Caucasian Employees 

“Similarly situated does not mean identical; it means that the plaintiff was 

‘similar in all of the relevant aspects.’ ” Braithwaite v. Dep’t of Homeland Sec., 

473 F. App’x 405, 410 (6th Cir. 2012) (quoting Ercegovich v. Goodyear Tire & 

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)). In Mitchell v. Toledo Hosp., 964 

F.2d 577, 583 (6th Cir. 1992), the Sixth Circuit noted three relevant factors in 

determining whether employees are “similarly situated” in the context of alleged 

differential disciplinary action: 

the individuals with whom the plaintiff seeks to compare his/her 

treatment must have [1] dealt with the same supervisor, [2] have been 

subject to the same standards and [3] have engaged in the same 

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conduct without such differentiating or mitigating circumstances that 

would distinguish their conduct or the employer’s treatment of them 

for it. 

Jackson v. VHS Detroit Receiving Hosp., Inc., No. 15-1802, 2016 WL 700411, at 

*5 (6th Cir. Feb. 23, 2016). 

 In the present case, Plaintiff argued that he was not granted FMLA leave to 

avoid working overtime, while other employees were allowed to choose not to 

work overtime with FMLA leave. Dkt. No. 27, p. 32 (Pg. ID No. 390). Three of the 

four employees named in the Interrogatories as being eligible to use the FMLA to 

be exempt from ordered overtime have been identified as Caucasian. Dkt. No. 27-

2, p. 7 (Pg. ID No. 403); Dkt. No. 27-16, p. 10 (Pg. ID No. 508); Dkt. No. 27-17, 

pp. 7–8 (Pg. ID No. 515–16). Additionally, Bates testified in his deposition that 

there were currently two employees, an Officer and a Corporal, receiving FMLA, 

which enabled them to periodically be relieved of mandatory overtime. Dkt. No. 

27-16, p. 10 (Pg. ID No. 508). Both of these individuals were African American. 

Id. Plaintiff claims that all of the individuals granted FMLA leave suffered from 

physical, as opposed to mental disabilities, but provided no evidence to support 

that claim. 

 With regard to Corporal Summers, who Plaintiff alleges was allowed to 

transfer to a front desk position without required overtime as accommodation for 

her physical disability, Defendant presented facts, which Plaintiff did not dispute, 

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that establish she was not similarly situated. Dkt. No. 25, pp. 29–30 (Pg. ID No. 

178–79). Summers was transferred to the front desk because she was the highest 

seniority bidder, continued to work required overtime in this position, and 

completed the required leave of absence forms. Id. Based on the facts presented, 

Summers was not similarly situated in all relevant respects to Plaintiff. 

 Plaintiff claims that “[a]t minimum, this is a factual dispute.” However, on 

these claims, Plaintiff relies primarily on bare bones assertions of illegality, 

without providing the facts necessary to determine whether the other employees 

are similarly situated. The Court was not provided with information as to the 

position each of these employees held, whether these employees were supervised 

by Defendant’s supervisors, whether these employees had similar disciplinary 

history in that they repeatedly refused orders to work mandatory overtime prior to 

submitting medical documentation and without completing FMLA paperwork, or 

whether there were any differentiating or mitigating circumstances that 

distinguished their conduct. 

At the hearing, Plaintiff’s counsel admitted that the facts on this issue were 

“fuzzy.” The facts provided to the Court indicate only that six of Defendant’s 

employees were granted FMLA leave, that they could choose to be exempted from 

working ordered overtime, and that four of the six were Caucasian. It does not 

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appear in the present case that there was disparate treatment because the Caucasian 

employees were not really comparable to Plaintiff. 

Plaintiff bears the burden of providing enough evidence to sustain a prima 

facie case of racial discrimination past summary judgment, and he did not carry 

this burden with regard to establishing he was treated differently than “similarly 

situated” employees outside the protected group. Accordingly, the Court will 

dismiss Plaintiff’s racial discrimination claims under Title VII and the ELCRA. 

4. Plaintiff’s Retaliation Claims Under the ADA, PWDCRA, Title VII, 

And ELCRA 

In Counts IV, VI, VIII, and X, Plaintiff alleges that Defendant retaliated 

against him for engaging in protected activities, in violation of the ADA, 42 U.S.C. 

§ 12203(a), PWDCRA, MICH. COMP. LAWS § 37.1602(a), Title VII, 42 U.S.C. § 

2000e-3(a), and ELCRA, MICH. COMP. LAWS § 37.2101. Dkt. No. 3, pp. 15–22 

(Pg. ID No. 35–42). The Court will analyze Plaintiff’s disability and racial 

retaliation claims together, because “[r]etaliation claims are treated the same 

whether brought under the ADA or Title VII.” Penny v. United Parcel Serv., 128 

F.3d 408, 417 (6th Cir. 1997). 

a. Whether Plaintiff Has Presented Sufficient Facts For A Trier Of 

Fact To Find A Prima Facie Case Of Retaliation 

Retaliation claims based on circumstantial evidence are governed by the 

McDonnell Douglas burden-shifting framework. Mickey v. Zeidler Tool & Die Co., 

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516 F.3d 516, 523 (6th Cir. 2008). To establish a prima facie case of retaliation, 

Plaintiff must show “(1) that he engaged in a protected activity; (2) that the 

defendant had knowledge of his protected conduct; (3) that the defendant took an 

adverse employment action towards him; and (4) that there was a causal 

connection between the protected activity and the adverse employment action.” Id. 

(quoting Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 381 (6th Cir. 

2002)). “The burden of establishing a prima facie case in a retaliation action is not 

onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th 

Cir. 2000). 

“If the plaintiff establishes a prima facie case of retaliation, the burden shifts 

to the defendant to establish a legitimate, nondiscriminatory reason for the adverse 

employment action.” Penny, 128 F.3d at 417. The plaintiff bears the burden of 

proving that the defendant’s proffered reason for the adverse action was mere 

pretext for discrimination. Id. 

i. Whether Plaintiff Engaged In A Protected Activity 

Plaintiff’s alleges that his protected activity included making “multiple 

requests for reasonable accommodation,” by submitting several doctors’ notes, and 

filing a charge with the EEOC on April 21, 2014. Dkt. No. 3, pp. 15, 17 (Pg. ID 

No. 35, 37); Dkt. No. 27-14, p. 2 (Pg. ID No. 485). 

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A plaintiff does not need to show that he or she is “disabled” within the 

meaning of the ADA to prevail on a disability-retaliation claim. Bryson v. Regis 

Corp., 498 F.3d 561, 577 (6th Cir. 2007). Instead, a plaintiff need only show that 

he or she engaged in an activity protected by the ADA, such as requesting 

reasonable accommodations. See id.; Hurtt v. Int’l Servs., Inc., 627 F. App’x 414, 

422 (6th Cir. 2015) (“We have held that requests for accommodation are protected 

acts.”). Since Plaintiff has presented evidence that he submitted doctors’ notes in 

order to request the accommodation of being excused from mandatory overtime, he 

can be considered to have engaged in a protected activity under the ADA and 

PWDCRA. 

Additionally, precedent shows that filing a charge with the EEOC constitutes 

a protected activity under Title VII and the ELCRA. See Abbott v. Crown Motor 

Co., 348 F.3d 537, 543 (6th Cir. 2003); Harris v. Heritage Home Health Care, 939 

F. Supp. 2d 793, 803 (E.D. Mich. 2013). Since Plaintiff filed a charge with the 

EEOC, alleging racial discrimination, prior to his termination, this act constitutes a 

protected activity under Title VII and the ELCRA. 

Plaintiff has provided sufficient evidence of having engaged in protected 

activities under the ADA, PWDCRA, Title VII, and ELCRA. 

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ii. Whether Defendant Had Knowledge Of Plaintiff’s Protected 

Conduct 

There does not appear to be a dispute that Defendant had knowledge of 

Plaintiff’s EEOC charge and Plaintiff’s claim that he was subject to harassment 

and a hostile work environment. Dkt. No. 27-14, p. 2 (Pg. ID No. 485); Dkt. No. 

27-17, p. 13 (Pg. ID No. 521). Plaintiff has presented sufficient evidence that 

Defendant had knowledge that he engaged in protected conduct under Title VII 

and the ELCRA. 

Additionally, although Plaintiff’s supervisors may not have had actual 

knowledge of Plaintiff’s doctors’ notes, they may have had knowledge of his 

requests for accommodations from Plaintiff’s verbal statements. See Hurtt, 627 F. 

App’x at 423 (concluding that good-faith verbal requests for accommodations, 

along with a doctor’s note, were sufficient to notify an employer of a plaintiff’s 

protected acts). Thus, Plaintiff has also provided sufficient evidence that Defendant 

had knowledge of his protected activities under the ADA and PWDCRA. 

iii. Whether Defendant Took Adverse Employment Action 

Towards Plaintiff 

As analyzed above, Plaintiff has presented sufficient facts for the Court to 

find that his termination constituted an adverse employment action taken against 

him. Accordingly, this prong is also satisfied. 

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iv. Whether there was a Causal Connection Between The 

Protected Activity And the Adverse Employment Action 

A plaintiff shows a causal connection by producing sufficient evidence to 

infer that an employer would not have taken the adverse employment action, had 

the plaintiff not engaged in a protected activity. Barrett, 36 F. App’x at 841. 

In the absence of direct evidence of the causal connection, a plaintiff can 

show causation by showing temporal proximity between the employer’s 

knowledge of the protected activity and the adverse employment action. Id. 

“Where an adverse employment action occurs very close in time after an employer 

learns of a protected activity, such temporal proximity between the events is 

significant enough to constitute evidence of a causal connection for the purposes of 

satisfying a prima facie case of retaliation.” Montell v. Diversified Clinical Servs., 

Inc., 757 F.3d 497, 505 (6th Cir. 2014). However, where time has elapsed between 

the employer’s knowledge of the activity and the adverse employment action, the 

plaintiff must provide additional evidence of retaliatory conduct to establish 

causality. Id. 

“Title VII retaliation claims must be proved according to traditional 

principles of but-for causation,” which “requires proof that the unlawful retaliation 

would not have occurred in the absence of the alleged wrongful action or actions of 

the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 

(2013); see also Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 649 

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(6th Cir. 2015) (noting that the Supreme Court in Nassar sought to prevent a 

lessening of the causation standard so that employees would not file frivolous 

discrimination charges to prevent undesired changes in employment). 

Here, Plaintiff submitted his doctors’ notes, requesting relief from 

mandatory overtime, on January 28, 2014, Dkt. No. 27-4, p. 2 (Pg. ID No. 418); 

March 5, 2014, Dkt. No. 27-5, p. 2 (Pg. ID No. 420); and sometime after February 

14, 2014, Dkt. No. 27-6, p. 2 (Pg. ID No. 422). Plaintiff alleges that he provided 

his superiors with verbal notice of his request for accommodations at his 

February/March 2014 disciplinary hearing. Plaintiff filed an EEOC charge on April 

21, 2014. Dkt. No. 27-14, p. 2 (Pg. ID No. 485). Defendant terminated Plaintiff on 

May 7, 2014. 

Plaintiff was subject to discipline for his refusal to work mandatory overtime 

as early as August 2012, more than 500 days before he submitted his first 

accommodation request and more than 600 days before he filed his EEOC charge. 

See Dkt. No. 25, pp. 12–13 (Pg. ID No. 161–62). Defendant disciplined Plaintiff 

progressively, beginning with one-day suspensions in 2012 and working up to 8-

day suspensions and eventual termination in early 2014 as Plaintiff’s behavior 

continued. Id. Accordingly, the evidence shows that Plaintiff was disciplined both 

before and after his protected activity. 

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Nevertheless, Plaintiff has produced enough evidence from which a 

reasonable jury could conclude that his complaints about a hostile work 

environment and racial discrimination began before he realized his job was in 

jeopardy. His EEOC charge, alleging both race and disability discrimination, was 

filed only 16 days before his termination. Temporal proximity on its own may be 

sufficient to establish a causal connection for the purposes of a summary judgment 

motion. 

Based on the principle that evidence must be construed in the light most 

favorable to the party opposing summary judgment, the Court finds that Plaintiff 

has presented a prima facie case of retaliation under the ADA, PWDCRA, Title 

VII, and ELCRA. 

b. Whether Defendant Provided A Legitimate, Non-Discriminatory 

Reason For Taking Adverse Employment Action 

As detailed in previous sections, Defendant’s proffered reason for 

terminating Plaintiff’s employment was his continuous insubordination with regard 

to direct orders to work overtime. Defendants have not provided any other 

evidence that Defendant violated policy or otherwise had deficient work 

performance. Since Plaintiff’s refusal to work overtime, based on his emotional 

disability, was the reason that he was terminated, the Court finds that Defendant 

has not provided a legitimate, non-discriminatory reason for terminating Plaintiff. 

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Accordingly, the Court denies Defendant’s motion on Plaintiff’s ADA, 

PWDCRA, Title VII, and ELCRA retaliation claims. 

V. CONCLUSION

For the reasons stated herein, the Court will GRANT in part and DENY in 

part Defendant’s Motion for Summary Judgment [25]. The Court will grant the 

Motion as to Counts V and IX, which are dismissed with prejudice. The Court 

denies the Motion as to the remaining counts. 

IT IS SO ORDERED. 

Dated: April 6, 2016 

 /s/Gershwin A Drain 

 HON. GERSHWIN A. DRAIN 

 United States District Court Judge 

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