1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEENA MILLER, 

 

 Plaintiff, Civil Action No. 15-CV-10806 

vs. HON. MARK A. GOLDSMITH 

RK GROCERS, LLC and 

SPARTANNASH ASSOCIATES, LLC, 

 

 Defendants. 

_______________________________/ 

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY 

JUDGMENT (Dkts. 24, 27) 

I. INTRODUCTION 

Plaintiff Deena Miller brought claims against Defendants RK Grocers, LLC (“RK”) and 

SpartanNash Associates, LLC (“SpartanNash”) pursuant to the Family Medical Leave Act 

(“FMLA”), 29 U.S.C. § 2601, et seq., alleging that both Defendants violated her right to job 

restoration as guaranteed by the Act. During the Court’s initial scheduling conference, and at the 

parties’ request, the Court agreed to entertain early motions for summary judgment on the 

limited issue of whether a contractual release bars Plaintiff’s present claims against Defendants. 

See 6/18/2015 Order (Dkt. 23). As explained fully below, the Court now concludes that the 

release bars Plaintiff’s claims against Defendant SpartanNash, entitling it to judgment as a matter 

of law. Because the release absolved SpartanNash of any further or continuing obligations under 

the FMLA, RK also had no such duties to Plaintiff — even assuming it is a successor in interest 

under the statute. Accordingly, Plaintiff cannot proceed against RK on her claim, and it, too, is 

entitled to judgment as a matter of law. 

 

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II. BACKGROUND 

From December 29, 2008 until her termination on May 27, 2014, Plaintiff was employed 

as a deli clerk at SpartanNash’s Pontiac, Michigan grocery store. Compl. ¶ 5 (Dkt. 1). On April 

23, 2014, SpartanNash informed Plaintiff in writing that it had entered into an agreement to sell 

its Pontiac location, and, consequently, Plaintiff’s employment with SpartanNash would 

terminate on or before May 31, 2014. SpartanNash Br. at 2 (Dkt. 24); see also 4/23/2014 Letter, 

Ex. A to SpartanNash Mot., at 26 of 39 (cm/ecf page) (Dkt. 24). The letter also explained to 

Plaintiff that employees could (i) apply for and receive consideration for continued employment 

at the store under new management; (ii) apply for open positions for which they were qualified at 

other SpartanNash stores (although employees would not have “bumping rights to other 

SpartanNash stores”); or (iii) receive a lump sum severance payment upon termination. 

SpartanNash Br. at 2; 4/23/2014 Letter at 26 of 39 (cm/ecf page). The letter stated that should an 

employee receive and accept an offer of continued employment with either the store’s new 

owner or with SpartanNash, or otherwise accept a third-party offer of employment, the employee 

would be ineligible for the severance program. 4/23/2014 Letter at 26 of 39 (cm/ecf page). 

On May 12, 2014, Plaintiff requested FMLA leave, to begin retroactively on May 9, 

2014. SpartanNash Br. at 2; Compl. ¶¶ 10-11. Plaintiff’s request was approved through July 28, 

2014. FMLA Designation Notice, Ex. 1 to Compl. (Dkt. 1-2). 

On May 27, 2014, SpartanNash sold its Pontiac store location to RK. Compl. ¶ 7. That 

same day, SpartanNash terminated Plaintiff as a result of the sale. Id. ¶ 12. On June 13, 2014, 

Plaintiff applied, and was approved, for unemployment insurance benefits beginning June 8, 

2014. SpartanNash Br. at 3; see also Unemployment Insurance Benefits, Ex. C to SpartanNash 

Mot., at 32 of 39 (cm/ecf page) (Dkt. 24). 

On June 30, 2014, Plaintiff applied for employment with RK, but RK elected not to hire 

her. Compl. ¶ 13; RK Br. at 7 (Dkt. 27). Also on June 30, 2014, Plaintiff signed a separation 

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agreement with SpartanNash. Pl. Resp. at 2 (Dkt. 30); SpartanNash Br. at 3; see also Separation 

Agreement, Ex. D to SpartanNash Mot., at 37 of 39 (cm/ecf page) (Dkt. 24). 

The separation agreement sets forth the following relevant provisions: 

 “[Plaintiff’s] employment with the Company shall be considered 

terminated as of May 27, 2014.” 

 “By signing this Agreement, [Plaintiff] release[s] the Company 

from any known or unknown claims that [she] may have 

against the Company.” “The release applies to the Company . . . 

and its directors, officers, employees, successors and assigns. It 

also includes any employee benefit plans or funds sponsored or 

administered by the Company [except vested benefits in retirement 

plans].” “This is a general release that applies to any and all 

claims, whether known or unknown, arising out of [Plaintiff’s] 

employment with the Company or the termination of [Plaintiff’s] 

employment. This release specifically includes any claims in 

existence at the time [Plaintiff] signed this Agreement arising 

under . . . any and all other federal, state, and local statutes and 

claims for wrongful discharge, whether based on contract, tort, or 

public policy.” The release “does not apply to claims that may not 

be released as a matter of law.” 

 “[Plaintiff] understand[s] and agree[s] that the termination of 

[her] employment with the Company is permanent, and that 

[she] will have no right to future employment with the 

Company.” 

 Plaintiff had the right to revoke the agreement within seven days 

after she signed it, and the agreement would not become effective 

or enforceable unless the seven-day revocation period had lapsed 

without Plaintiff exercising her right of revocation. 

See Separation Agreement at 1-3 (37-39 of 39 (cm/ecf pages)) (emphasis added, in part).1

 The 

separation agreement is signed by Plaintiff and the human resource director for SpartanNash. Id. 

at 3 (39 of 39 (cm/ecf page)). RK was not a party to the agreement. 

 On November 11, 2014, Plaintiff sent RK a letter notifying it of its purported obligation 

to restore Plaintiff to her position, because RK was a successor in interest to SpartanNash. 

Compl. ¶ 17. Subsequently, on March 5, 2015, Plaintiff filed suit alleging: (i) that SpartanNash 

 

1

 The “Company” is defined as SpartanNash and its subsidiaries and affiliates. Separation 

Agreement at 1 (37 of 39 (cm/ecf page)). 

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violated the FMLA in failing to restore Plaintiff to equivalent available positions within 

geographically proximate worksites; and (ii) that RK “interfered with and denied” Plaintiff’s 

FMLA rights by refusing to restore Plaintiff to her former position. Id. ¶¶ 18, 24-25. 

III. STANDARD OF DECISION 

A court “shall grant summary judgment 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 Sixth Circuit has stated the following with respect to summary judgment 

motions: 

[C]redibility judgments and weighing of the evidence are 

prohibited. Rather, the evidence should be viewed in the light 

most favorable to the non-moving party. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, the facts and any 

inferences that can be drawn from those facts must be viewed in 

the light most favorable to the non-moving party. Matsushita Elec. 

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

Biegas v. Quickway Carriers Inc., 573 F.3d 365, 373 (6th Cir. 2009) (brackets omitted). 

IV. ANALYSIS 

There is no dispute as to the underlying events that comprise the relevant facts necessary 

to dispose of the current motions, although the parties do disagree as to the characterization and 

significance of those facts. As discussed in detail below, the Court concludes first that Plaintiff 

validly waived any claims she had arising out of SpartanNash’s conduct that occurred prior to 

the execution of the separation agreement. The Court further concludes that, despite Plaintiff’s 

characterization to the contrary, the conduct comprising the alleged FMLA violation — i.e., 

SpartanNash’s action in terminating Plaintiff and foreclosing her right to future employment — 

did occur prior to the execution of the agreement. Therefore, Plaintiff validly released 

SpartanNash from that claim, entitling SpartanNash to summary judgment on that basis. 

Additionally, because an employee’s entitlements under the FMLA are the same under a 

successor in interest as they would have been under a predecessor employer, RK’s obligations 

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under the FMLA are coextensive with those of SpartanNash’s — assuming RK is a successor in 

interest. And once Plaintiff signed the separation agreement, SpartanNash owed her nothing 

further, nor were there any FMLA duties for RK to inherit. Thus, RK also is entitled to summary 

judgment. 

A. Liability as to SpartanNash 

 As an initial matter, there is no suggestion that Plaintiff’s FMLA claims do not fall within 

the plain language of the release. Indeed, the language broadly encompasses “any and all 

claims” arising out of Plaintiff’s employment or termination, and explicitly includes those claims 

arising under federal statutes. E.g., Int’l Union, UAW, and UAW Local 1869 v. Gen. Motors 

LLC, 529 F. App’x 760, 765-766 (6th Cir. 2013).2 Rather, the heart of the matter is whether 

Plaintiff’s release is valid, given a Department of Labor (“DOL”) regulation, 29 C.F.R. 

§ 825.220(d), which prohibits employees from waiving their “prospective rights” under the 

FMLA. 

SpartanNash’s position is simply that, because Plaintiff signed the separation agreement 

after she was terminated, her FMLA rights were not prospective in nature and the release is 

valid. SpartanNash Br. at 10. Plaintiff takes a different view, contending that her lawsuit is 

predicated not on the initial termination decision, but, rather, on SpartanNash’s subsequent 

failure to restore Plaintiff to an equivalent position within a geographically proximate area. Pl. 

Resp. at 7-8. Plaintiff’s theory is that, because her right to restoration under the FMLA did not 

arise until the end of her leave (July 28), the right was prospective as of the date she signed the 

agreement (June 30), and therefore she could not validly release it. Id. at 5-6. At issue then, is 

what it means to have a “prospective right” within the meaning of the regulation. 

 

2

 In any event, by not addressing SpartanNash’s argument that the release language does 

encompass her FMLA claim, Plaintiff has waived any argument she may have on that issue. See 

Gomery v. Cont’l Cas. Co., No. 1:13-cv-947, 2014 WL 4209648, at *4 (W.D. Mich. Aug. 25, 

2014) (collecting cases). 

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Upon review of the relevant legal landscape, the Court concludes that the proper focus is 

on the timing of the conduct allegedly denying or interfering with FMLA rights relative to the 

execution of any release. On this issue, SpartanNash has the better argument, because the 

conduct that actually gave rise to the alleged FMLA violation occurred, at the latest, when 

Plaintiff was presented with and signed the separation agreement. By that point, SpartanNash 

had clearly communicated to Plaintiff that her employment was terminated, that the termination 

was “permanent,” and that she would have “no right to future employment” — i.e., she would 

not be restored to her job. Plaintiff’s suggestion that the “failure to restore” conduct could not 

have occurred until after the signing of the agreement is unpersuasive, because it departs from a 

common-sense understanding of how employers and employees communicate their intentions 

regarding the termination of their relationship. Plaintiff’s theory prohibiting the release of a 

claim for denial of future restoration — when the parties had clearly understood such restoration 

would not come about — would also effectively render post-dispute settlements meaningless, 

contrary to the intent expressed by the regulation. 

A brief examination of the history behind the regulation is instructive. Prior to 2009, the 

regulation broadly prohibited any waiver of FMLA rights, rather than prohibiting only 

prospective waivers: 

Employees cannot waive, nor may employers induce employees to 

waive, their rights under FMLA. For example, employees (or their 

collective bargaining representatives) cannot “trade off” the right 

to take FMLA leave against some other benefit offered by the 

employer. 

29 C.F.R. § 825.220(d) (2008). For some time, there was a circuit split over the precise meaning 

of that language. Some courts applied the language to bar all releases of claims not approved by 

a court or the DOL, even releases given after a settlement had been reached, while others read 

the regulation as barring only “prospective” waivers of rights. Compare Taylor v. Progress 

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Energy, Inc. (“Taylor I”), 415 F.3d 364, 368 (4th Cir. 2005), superseded by regulation, with 

Faris v. Williams WPC-I, Inc., 332 F.3d 316, 320 (5th Cir. 2003). 

 Because the latter view represented the view of the DOL, the regulation was amended in 

2009 to clarify that intent. The amended regulation provides, in relevant part: 

Employees cannot waive, nor may employers induce employees to 

waive, their prospective rights under FMLA. For example, 

employees (or their collective bargaining representatives) cannot 

trade off the right to take FMLA leave against some other benefit 

offered by the employer. This does not prevent the settlement or 

release of FMLA claims by employees based on past employer 

conduct without the approval of the Department of Labor or a 

court. 

29 C.F.R. § 825.220(d) (2009) (emphasis added). 

In its explanation of the changes, the DOL “make[s] clear that an employee may waive 

his or her FMLA claims based on past conduct by the employer, whether such claims are filed or 

not filed, or known or unknown to the employee as of the date of signing the settlement or the 

severance agreement.” The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934-01, 

67988 (Nov. 17, 2008). By expressly permitting the release of claims based on “past employer 

conduct,” the amended regulation sought to make the timing of the conduct the key to 

determining whether a release was valid or not. See also Taylor v. Progress Energy, Inc. 

(“Taylor II”), 493 F.3d 454, 458 (4th Cir. 2007) (describing the DOL’s argument as 

distinguishing between prospective waivers for future violations and retrospective waivers for 

past violations), superseded by regulation. 

 In keeping with this interpretation, courts have focused on the timing of the allegedly 

unlawful conduct vis-à-vis the release, and have rejected the view that a release is prospective if 

it covers a claim for future leave or restoration that is already fully identified at the time the 

release is signed. In one of the most widely cited cases on the issue, Paylor v. Hartford Fire 

Insurance Company, 748 F.3d 1117 (11th Cir. 2014), the Eleventh Circuit rejected an argument 

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essentially identical to the one presently advanced by Plaintiff. In Paylor, the plaintiff sought 

FMLA leave and was ultimately presented with a choice by her employer: accept a severance 

package with a release of the FMLA claim or agree to a performance-improvement plan. Id. at 

1120. Although she signed the severance agreement, she brought an FMLA action claiming that 

the release was unenforceable as a waiver of “prospective rights,” which she defined as “the 

unexercised rights of a current eligible employee to take FMLA leave and to be restored to the 

same or an equivalent position after the leave.” Id. at 1123. The Eleventh Circuit disagreed, 

holding that “‘prospective rights’ under the FMLA are those allowing an employee to invoke 

FMLA protections at some unspecified time in the future.” Id. (emphasis added). The plaintiff’s 

release was not prospective, because the severance agreement did not ask her “to assent to a 

general exception to the FMLA, but rather to a release of the specific claims she might have 

based on past interference.” Id. at 1123-1124. Because the cause of action under the FMLA 

attaches to conduct and not “some free-floating set of ‘unexercised’ FMLA rights,” and given 

that the regulation explicitly allows for settlement of claims based on past employer conduct, the 

Eleventh Circuit held that “‘prospective’ waiver means only that an employee may not waive 

FMLA rights, in advance, for violations of the statute that have yet to occur.” Id. 

Other courts have similarly concluded that a release of FMLA claims given as part of a 

termination of the employer-employee relationship validly includes claims for loss of job 

restoration. See Gleich v. St. Andrew Sch., No. 2:10-cv-894, 2011 WL 4573367, at *1-2, 5 

(S.D. Ohio Sept. 30, 2011) (rejecting argument that release waived prospective rights when 

plaintiff signed away any right to future employment while she was on leave); Camp v. 

Bridgeway Ctr. Inc., No. 3:14cv123/MCR/EMT, 2014 WL 5430277, at *4-5 (N.D. Fla. Oct. 22, 

2014) (rejecting plaintiff’s argument that in executing a receipt for back wages, liquidated 

damages, employment benefits, or other compensation and waiving claims for wages for the 

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specified period she retained right to bring suit seeking reinstatement based upon prior 

termination, because release covered the prior employer conduct at issue, i.e., the termination). 

Our Plaintiff is similarly situated. She claims that the waiver she signed was prospective, 

because it covered a yet-unexercised right to restoration. But like the plaintiffs in Paylor and the 

other authorities cited above, Plaintiff had a right that was far from unspecified. It was a 

specified right that she gave up — a right to be restored to her position on July 28, 2014. 

SpartanNash’s manifest intent to deny Plaintiff restoration was unquestionably part of the 

conduct that predated the execution of the release. 

Notably, there was nothing ambiguous about the termination’s impact on Plaintiff’s right 

of restoration. The separation agreement unambiguously manifested both that her termination 

was permanent and that she had no right to future employment with SpartanNash. See 

Separation Agreement at 2 (38 of 39 (cm/ecf page)). This was all in accord with the information 

contained in the letter provided to Plaintiff back in April. Indeed, Plaintiff applied for 

unemployment benefits on the grounds that she had been “laid off” from SpartanNash even 

before she signed the separation agreement. See Unemployment Insurance Benefits at 1 (32 of 

39 (cm/ecf page)). To agree with Plaintiff that the termination did not encompass the loss of job 

restoration would defy the economic reality of the parties’ actions and is at odds with the 

conventional manner in which employers and employees alike communicate expectations and 

manage the termination of their relationship. 

Plaintiff’s attempt to segregate the alleged failure to restore from the actual termination is 

further undermined by court decisions rejecting her argument. See Killian v. Yorozu Auto. 

Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006) (concluding that the employer interfered with the 

plaintiff’s right to restoration under the FMLA when it terminated her); Gleich, 2011 WL 

4573367, at *5 (holding that “any claim to reinstatement to [plaintiff’s] job would have accrued 

at such point when Defendants interfered with her right to job restoration after taking leave” by 

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terminating her, and further concluding that “[plaintiff] forfeited [ ] a claim for retaliatory 

discharge, and any remedy of reinstatement, when she waived those claims by executing the 

release and receiving compensation”).

 And finally, Plaintiff’s proposed framework would work against the regulation’s explicit 

allowance for employees to release and/or settle FMLA claims arising out of prior employer 

conduct. See 29 C.F.R. § 825.220(d). To adopt Plaintiff’s argument would subject employers to 

lingering liability for the denial and/or interference of the right to leave or to job-restoration, 

even after the employee settled or released the employer from liability for the underlying conduct 

that triggered the violation in the first place. This would effectively render releases contained in 

severance or separation agreements meaningless. 

There is no indication that the DOL intended such a result. Indeed, the DOL “believes 

[out-of-court settlements] promote[ ] the efficient resolution of FMLA claims[,] and [it] 

recognizes the common practice of including a release of a broad array of employment claims in 

severance agreements.” The Family and Medical Leave Act of 1993, 73 Fed. Reg. at 67988; see 

also Taylor II, 493 F.3d at 459 (referencing the DOL’s argument that a reading of the pre-2009 

regulation as applying only to prospective waivers “is consistent with the well-accepted policy 

disfavoring prospective waivers [of rights], but encouraging settlement of claims, in employment 

law.” (quoting the DOL’s amicus brief)); Dougherty v. Teva Pharm. USA, Inc., No. 05-2336, 

2007 WL 1165068, *6 (E.D. Pa. Apr. 9, 2007) (“[I]nsofar as the regulation bars the prospective 

waiver of rights, but permits (if not encourages) the private settlement of FMLA claims, the 

DOL has elected to treat the settlement of FMLA claims as being no different from the 

settlement of other federal employment claims.” (collecting cases)). 

 In sum, because the conduct that gave rise to the alleged violation occurred prior to the 

execution of the separation agreement, Plaintiff validly released any claims she may have arising 

out of that conduct, and SpartanNash is entitled to summary judgment on that basis. 

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B. Liability as to RK 

Any potential liability RK may suffer under the FMLA is predicated on it being a 

successor in interest to SpartanNash. Compl. ¶¶ 15-16. Specifically, Plaintiff asserts that, as a 

successor in interest, RK had a duty to restore Plaintiff to her former position. Id. ¶ 17. 

The regulation governing a successor in interest’s obligations under FMLA provides as 

follows: 

When an employer is a successor in interest, employees’ 

entitlements are the same as if the employment by the predecessor 

and successor were continuous employment by a single employer. 

For example, the successor, whether or not it meets FMLA 

coverage criteria, must grant leave for eligible employees who had 

provided appropriate notice to the predecessor, or continue leave 

begun while employed by the predecessor, including maintenance 

of group health benefits during the leave and job restoration at the 

conclusion of the leave. 

29 C.F.R. § 825.107(c). 

Both RK and Plaintiff rely on this regulation for their respective positions. According to 

RK, a successor employer has the same liability as a predecessor employer; therefore if 

SpartanNash is not liable, RK also cannot be liable. RK Suppl. Br. at 2, 3-4 (Dkt. 33). Plaintiff 

counters that the regulation states only that an employee’s FMLA entitlements are the same 

under a successor employer as a predecessor employer — meaning that Plaintiff’s right to job 

restoration carried over from SpartanNash to RK — but that neither the regulation nor RK’s 

cited cases address whether a successor employer benefits from a release barring claims against 

the predecessor employer. Pl. Suppl. Br. at 2, 4 (Dkt. 34). To read that result into the regulation, 

Plaintiff continues, would undermine the remedial purpose of the FMLA, which should be 

liberally construed in the employee’s favor. Id. at 3.3

 

 

3

 There also appeared initially to be a dispute as to whether RK was a “successor” as defined by 

the separation agreement such that it could take advantage of the release contained in the 

separation agreement. See RK Br. at 11 (suggesting that Plaintiff waived her claims against RK 

as “successor”); Pl. Resp. at 9-11 (implying that RK is a successor in interest as defined by the 

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The answer here is supplied by the plain language of the regulation: Plaintiff’s 

“entitlements are the same as if the employment by [Spartan Nash] and [RK] were continuous 

employment by a single employer.” Because Plaintiff waived any FMLA rights attendant to her 

then-existing leave — including her right to restoration — as to SpartanNash, she had no such 

entitlement against RK. There is no indication that an employee has greater rights against a 

successor in interest than she would have against the predecessor employer. And the regulation 

does not authorize new (or renewed) FMLA rights to spring into being when a successor in 

interest replaces a predecessor. 

Thus, assuming RK is a successor in interest, it was required to treat Plaintiff in the same 

manner as SpartanNash would have treated her. Crucially, Plaintiff was not entitled to any 

continuing FMLA rights pursuant to her employment with SpartanNash because she settled all of 

her claims — including her FMLA claim — when she signed the separation agreement. At that 

point, SpartanNash was relieved of any FMLA obligation to restore Plaintiff to her former 

position. If an employee’s entitlements are the same as if the employment was continuous under 

a single employer, then RK is correct that it also owed Plaintiff no subsequent duty of 

restoration. Therefore Plaintiff’s claim against RK must fail as well. 

V. CONCLUSION 

 For the foregoing reasons, the Court grants both Defendant SpartanNash’s motion for 

summary judgment (Dkt. 24) and Defendant RK’s motion for summary judgment (Dkt. 27). 

SO ORDERED. 

Dated: March 17, 2016 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

 

FMLA, but not as defined in the corporate context for purposes of the separation agreement). 

However, in supplemental briefing on this issue, RK conceded that it was not a successor for 

purposes of the separation agreement. See RK Suppl. Br. at 4. 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and 

any unrepresented parties via the Court's ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on March 17, 2016. 

 s/Karri Sandusky 

 Case Manager

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