1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

THOMAS RUSSELL, 

 Plaintiff,

v. Civil Case No. 14-14230 

Honorable Linda V. Parker

CSK AUTO, INC., n/k/a 

O’REILLY AUTO 

ENTERPRISES, LLC., 

 Defendant. 

__________________________/

AMENDED OPINION AND ORDER (1) DENYING PLAINTIFF’S 

MOTION FOR PARTIAL SUMMARY JUDGMENT [ECF NO. 34], (2) 

DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [ECF 

NO. 35], AND (3) DISMISSING WITH PREJUDICE PLAINTIFF’S CLAIM 

FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 

I. Introduction 

 On November 3, 2014, Plaintiff Thomas Russell (“Plaintiff”) filed this 

lawsuit against Defendant CSK Auto, Inc., n/k/a O’Reilly Auto Enterprises, LLC 

(“Defendant”), alleging that Defendant retaliated and constructively discharged 

him in violation of the Federal Medical Leave Act. (ECF No. 1.) Presently before 

the Court are Plaintiff’s motion for partial summary judgment (ECF No. 34) and 

Defendant’s motion for summary judgment (ECF No. 35) pursuant to Federal Rule 

of Civil Procedure 56. Finding the facts and legal arguments sufficiently presented 

in the parties’ briefs, the Court dispensed with oral argument pursuant to Eastern 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 1 of 12 Pg ID 707
2

District of Michigan Local Rule 7.1(f) on July 1, 2016. (ECF No. 43.) For the 

reasons that follow, the Court is denying Plaintiff’s motion for partial summary 

judgment, denying Defendant’s motion for summary judgment, and dismissing 

Plaintiff’s claim of intentional infliction of emotional distress. 

II. Summary Judgment Standard 

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is 

appropriate “if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The central inquiry is “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 v. Liberty Lobby, Inc., 477 U.S. 

242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 

mandates summary judgment against a party who fails to establish the existence of 

an element essential to that party’s case and on which that party bears the burden 

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

The movant has the initial burden of showing “the absence of a genuine 

issue of material fact.” Id. at 323. Once the movant meets this burden, the 

“nonmoving party must come forward with specific facts showing that there is a 

genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 2 of 12 Pg ID 708
3

demonstrate a genuine issue, the nonmoving party must present sufficient evidence 

upon which a jury could reasonably find for that party; a “scintilla of evidence” is 

insufficient. See Anderson, 477 U.S. at 252. 

Courts evaluate cross-motions for summary judgment under the same 

standard. La Quinta Corp. v. Heartland Props., LLC, 603 F.3d 327, 335 (6th Cir. 

2010) (citing Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)). When 

faced with cross- motions for summary judgment, each motion is examined on its 

own merits. Id.

III. Factual Background 

 This dispute arises from Plaintiff’s FMLA leave in 2010 and 2012 and 

compensation. 

Plaintiff was employed by Defendant from June 14, 1988 to September 9, 

2013. (ECF No. 1 ¶ 3.) Plaintiff injured his ankle in 2010 and subsequently took 

FMLA leave from September 28, 2010 until December 21, 2010. (Id. ¶ 6.) 

Plaintiff suffered another injury in December 2012 and again went on FMLA 

leave, starting December 12, 2012. (ECF No. 1 ¶¶ 9, 10.) 

Plaintiff’s compensation while employed with Defendant was based on 

“assurance pay.” Assurance pay “guaranteed a certain level of income by 

providing a minimum level of income if store-based commissions were not higher 

than the assured amount.” (ECF No. 34 at Pg ID 152.) The goal of assurance pay 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 3 of 12 Pg ID 709
4

was for the store manager to increase sales in their particular store so that the 

profits of the store could pay the store manager’s salary. (ECF No. 35 at Pg ID 

336.) Store managers were evaluated after the first year the assurance pay 

structure was introduced to determine whether the managers should remain on the 

assurance pay plan. (Id.) 

Plaintiff was twice taken off the assurance plan. The facts surrounding his 

removal from assurance pay are in dispute. Plaintiff alleges that he was first 

removed from assurance pay in 2010 while he was on FMLA leave. (ECF No. 34 

at Pg ID 153.) During this time, Plaintiff states he was harassed by his district 

manager to return to work. (ECF No. 1 ¶ 7.) Defendant, however, argues that 

Plaintiff was advised he would be removed from the assurance plan on September 

17, 2010, before Plaintiff took FMLA leave starting September 28, 2010. (ECF 

No. 35 at Pg ID 337-38.) Further, Defendant denies any harassment. (ECF No. 5 ¶ 

7.) 

Plaintiff was placed back on the assurance plan after sending a letter to the 

regional manager complaining of the reduction in pay. (ECF No. 34 at Pg ID 453.) 

When Plaintiff returned to work, he was transferred to a new location and was told 

“as long as [your] sales continue[] to grow, [you will] not be removed from [your] 

assurance pay.” (ECF No. 34 at Pg ID 153; ECF No. 1 ¶ 8.) 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 4 of 12 Pg ID 710
5

Plaintiff states he was next removed from the assurance plan during his 

FMLA leave in December 2012. (ECF No. 34 at Pg ID 153.) Plaintiff alleges he 

was not notified of his removal from the assurance plan until February 14, 2013— 

nearly six weeks after the change in pay occurred. (Id.)

1

 Plaintiff was told he was 

removed due to “poor sales, despite the fact that sales increased year after year...” 

(Id. at Pg ID 154.) 

Defendant disagrees with Plaintiff’s allegations surrounding his removal 

from assurance pay in 2012. Defendant states that Plaintiff went on FMLA leave 

from December 12, 2012 to January 14, 2013. (ECF No. 35 at Pg ID 338.) 

According to Defendant, Plaintiff was advised in March 2013 that he would be 

removed from the assurance plan. (Id.) Defendant advised Plaintiff that “[h]e was 

removed from the plan since his performance was insufficient to create store 

profits high enough to be paid off the store.” (ECF No. 42 at Pg ID 675.) 

Defendant alleges that Plaintiff’s compensation was reduced by 

approximately $700.00 a week after his removal from the assurance plan in March 

2013. (ECF No. 35 at Pg ID 338.) Plaintiff disagrees, alleging that the decrease in 

compensation varied monthly and “was as high as $1,182 in one month.” (ECF 

No. 36 at Pg ID 422.) Defendant offered Plaintiff the opportunity to transfer to the 

                                                            

1 Plaintiff notes that he was notified of his removal from assurance pay on 

Valentine’s Day, “a day that is supposed to be about family and joy with those who 

you love.” (Id.at Pg ID 163-64.) 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 5 of 12 Pg ID 711
6

company’s Royal Oak or Madison Heights store “to increase his chances at 

improving his pay as those stores had higher volume.” (Id. at Pg ID 339.) Plaintiff 

chose to remain at the Lapeer location. (Id.) 

Upon his removal from the assurance plan for the second time, Plaintiff’s 

manager Mr. Gdowski advised Plaintiff that his salary could increase if store 

profits would increase. (ECF No. 35 at Pg ID 338.) Plaintiff threatened to quit if 

his income did not increase, and the regional manager “told [Plaintiff] to wait to 

see if he could do anything.” (ECF No. 34 at Pg ID 154.) After no changes in 

salary occurred for seven months, Plaintiff quit. (Id.) Plaintiff resigned from his 

employer in September 2013 with the job title of Store Manager. (ECF No. 1 ¶ 3.) 

IV. Plaintiff’s Motion For Partial Summary Judgment 

 Plaintiff’s motion for partial summary judgment focuses on the issue of 

constructive discharge. (ECF No. 34.) 

 To successfully assert a claim of constructive discharge, plaintiff must 

establish that (1) the employer deliberately created intolerable working conditions, 

as perceived by a reasonable person and (2) the employer did so with the intention 

of forcing the employee to quit and the employee actually quit. Savage v. Gee, 

665 F.3d 732, 739 (6th Cir. 2012); see also Logan v. Denny’s, 259 F.3d 558, 568-

69 (6th Cir. 2001). “To determine if there is a constructive discharge, both the 

employer’s intent and the employee’s objective feelings must be examined.” 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 6 of 12 Pg ID 712
7

Savage, 665 F.3d at 739 (citing Moore v. KUKA Welding Sys. & Robot Corp., 171 

F.3d 1073, 1080 (6th Cir. 1999)). 

 The Sixth Circuit considers seven factors in determining the first prong of 

the constructive discharge analysis: 

Whether a reasonable person would have felt compelled to resign 

depends on the facts of each case, but we consider the following 

factors relevant, singly or in combination: (1) demotion; (2) reduction 

in salary; (3) reduction in job responsibilities; (4) reassignment to 

menial or degrading work; (5) reassignment to work under a younger 

supervisor; (6) badgering, harassment, or humiliation by the employer 

calculated to encourage the employee’s resignation; or (7) offers of 

early retirement or continued employment on terms less favorable 

than the employee’s former status. 

Logan, 259 F.3d 558, 569 (citing Brown v. Bunge Corp., 207 F.3d 776, 782 (5th 

Cir. 2000)). 

 Plaintiff argues that Defendant created intolerable working conditions 

through a reduction in Plaintiff’s salary, demotion, and humiliation. Plaintiff 

alleges he was removed twice from assurance pay within days of his FMLA leave. 

(ECF No. 34 at Pg ID 156.) Plaintiff calculates that the reduction in pay after his 

second leave under FMLA was just over 20% in an eight-month period. (Id.) 

Plaintiff suggests that the removal from assurance pay was a demotion, although 

his title never changed. (See ECF No. 37 at Pg ID 621.) Plaintiff describes the 

second loss of assurance pay on February 14, 2013—Valentine’s Day—as 

humiliating due to the importance of the date. Plaintiff further questions the timing 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 7 of 12 Pg ID 713
8

of informing him of his loss of assurance pay on Valentine’s Day when the loss 

allegedly took effect on December 31, 2012. (ECF No. 34 at Pg ID 163-64.) 

 Plaintiff argues that the second prong of the constructive discharge analysis 

is satisfied because Defendant took steps to force Plaintiff to quit by timing his 

removal from assurance pay to coincide with Plaintiff’s FMLA leave. (Id. at Pg ID 

154.) Plaintiff further alleges that Defendant took no action to help alleviate the 

loss of pay for Plaintiff. (Id.) 

 Defendant argues that Plaintiff cannot satisfy the requirements for a 

constructive discharge claim for three reasons. First, Plaintiff was not demoted 

upon his return from FMLA leave in 2010 or 2013. (ECF No. 35 at Pg ID 350.) 

Second, Plaintiff’s responsibilities did not change from his first FMLA leave until 

he quit in September 2013. (Id.) Third, Plaintiff was not assigned to degrading or 

menial work. (Id.) Overall, Defendant claims that Plaintiff’s “working conditions 

remained unchanged except for the computation of pay.” (Id.) 

 This Court finds Plaintiff’s Motion for Partial Summary Judgment 

unpersuasive. Plaintiff fails in applying all but one factor from the Sixth Circuit’s 

analysis in Logan. 259 F.3d 558 at 569. Plaintiff’s primary argument rests on one 

factor, “reduction in salary.” Id. However, as Defendant notes, Plaintiff relies on a 

case of no precedential value in stating his reduction in pay is sufficient to satisfy 

the first prong of the constructive discharge standard. Further, both parties 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 8 of 12 Pg ID 714
9

disagree on when Plaintiff was removed from assurance pay and the actual amount 

of loss. The Court therefore denies Plaintiff’s Motion for Partial Summary 

Judgment. 

V. Defendant’s Motion for Summary Judgment 

 Defendant’s motion for summary judgment argues that both Counts I and II 

of Plaintiff’s complaint should be dismissed under Rule 56. Because constructive 

discharge was discussed in the analysis of Plaintiff’s motion, we now turn to the 

remaining issues: (1) retaliation and (2) intentional infliction of emotional distress. 

1. Retaliation 

 In the complaint, Plaintiff alleges that Defendant retaliated against Plaintiff 

by removing him from assurance pay after being on FMLA leave. (ECF No. 1 ¶ 

24.) To establish a prima facie case of FMLA retaliation, Plaintiff must 

demonstrate that: 

(1) [he] was engaged in an activity protected by the FMLA; (2) the 

employer knew that [he] was exercising [his] rights under the FMLA; 

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

employer took an employment action adverse to [him]; and (4) there 

was a causal connection between the protected FMLA activity and the 

adverse employment action. 

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

Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006). 

 As a defense, Defendant can demonstrate it had a legitimate business reason 

for its action. If Defendant’s defense is successful, Plaintiff has an opportunity to 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 9 of 12 Pg ID 715
10

show that Defendant’s reason is pretextual. Pretext can be demonstrated “by 

showing that the proffered reason (1) has no basis in fact, (2) did not actually 

motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the 

challenged conduct.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003); 

see also Smith v. Aco, Inc., 368 F.Supp.2d 721, 738 (E.D. Mich. 2005). 

 Defendant concedes that the first three elements of the retaliation claim are 

satisfied. (ECF No. 35 at Pg ID 342.) Defendant argues that Plaintiff cannot 

demonstrate a causal connection between Plaintiff’s use of FMLA leave and his 

removal from assurance pay. Defendant alleges that Plaintiff has no evidence of a 

causal connection other than the removal from assurance pay two months after his 

return from leave. (Id.) Further, Defendant states Plaintiff’s removal from 

assurance pay occurred in March 2013 during the course of his annual evaluation, 

not while Plaintiff was on FMLA leave.2

 (ECF No. 35 at Pg ID 338.)

 Plaintiff’s response brief argues there is a causal connection. Plaintiff states 

in 2010, he was advised he was going to be removed from assurance pay several 

weeks after notifying the company of his injury and need for time off. (ECF No. 

34 at Pg ID 153.) Defendant disagrees. Defendant says Plaintiff was told he 

would be removed in September 2010, before Plaintiff requested FMLA leave. 

(ECF No. 35 at Pg ID 337-38.) 

                                                            

2

 Defendant also discusses the removal of other managers from assurance pay 

during this time period. (ECF No. 35 at Pg ID 343.) 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 10 of 12 Pg ID 716
11

 The parties also disagree on the facts surrounding Plaintiff’s second leave 

under FMLA. Plaintiff states he was taken off assurance pay while on FMLA 

leave in December of 2012, but he was not notified of this change until weeks after 

he returned from FMLA leave. (ECF No. 34 at Pg ID 153.) Defendant, however, 

alleges that the decision to remove Plaintiff occurred in December, but did not take 

effect until after Plaintiff returned from FMLA leave. (ECF No. 35 at Pg ID 338.) 

Defendant explains that the decrease of Plaintiff’s compensation in January and 

February are because Plaintiff did not receive commission due to being off on 

FMLA. 

 The claim of retaliation turns on when Plaintiff was removed from assurance 

pay when he took FMLA leave both in 2010 and 2012. Because the parties dispute 

the facts surrounding Plaintiff’s removal from assurance pay, Defendant’s motion 

for summary judgment on retaliation is denied. 

2. Intentional Infliction of Emotional Distress 

 To set forth a claim for intentional infliction of emotional distress, Plaintiff 

must demonstrate “(1) extreme and outrageous conduct, (2) intent or recklessness, 

(3) causation, and (4) severe emotional distress.” Gibbs v. Voith Industry Servs., 

60 F.Supp.3d 780, 801 (E.D. Mich. 2014). The conduct must be “so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of 

decency, and to be regarded as atrocious and utterly intolerable in a civilized 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 11 of 12 Pg ID 717
12

community.” Id. at 802 (citing Lavack v. Owen’s World Wide Enter. Network, 

Inc., 409 F.Supp.2d 848, 857 (E.D. Mich. 2005). 

 Defendant argues that Plaintiff is unable to establish a successful claim for 

intentional infliction of emotional distress. (ECF No. 35 at Pg ID 352.) In his 

response to Defendant’s motion, Plaintiff agrees to dismiss his intentional 

infliction of emotional distress claim. (ECF No. 36 at Pg ID 424.) 

VI. CONCLUSION 

Accordingly, 

IT IS ORDERED that Plaintiff’s Motion for Partial Summary Judgment 

(ECF No. 34) is DENIED; 

IT IS FURTHER ORDERED that Defendant’s Motion for Summary 

Judgment (ECF No. 35) is DENIED; 

IT IS FURTHER ORDERED that Plaintiff’s claim for intentional 

infliction of emotional distress is DISMISSED WITH PREJUDICE.

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: October 11, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, October 11, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:14-cv-14230-LVP-DRG Doc # 47 Filed 10/11/16 Pg 12 of 12 Pg ID 718