UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PAMELA LESLIE, REBEKAH LEE

KEELEY, PAMELA JEAN BLAKE,

ELIZABETH ANN KAPUS & JASON

LEWANDOWSKI

Plaintiffs,

v.

MICHIGAN BELL TELEPHONE

COMPANY d/b/a AT&T,

Defendant.

 

Case No. 15-11205

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [30]

This matter comes before the Court on Defendant’s motion for summary judgment.

Plaintiffs allege Defendant unlawfully retaliated against them in violation of the Family and

Medical Leave Act (FMLA) and the Michigan Persons with Disabilities Civil Rights Act

(PWDCRA). Plaintiff Pamela Leslie also alleges age discrimination in violation of the

Michigan Elliott Larson Civil Rights Act. For the reasons stated herein, the Court DENIES

Defendant’s motion as to Plaintiffs’ FMLA and PWDCRA claims and GRANTS Defendant’s

motion as to Plaintiff Pamela Leslie’s age discrimination claim.1

I. Background

Each Plaintiff was previously employed as a service representative in Defendant’s

Port Huron call center location. The service representative position is an hourly, non-

 1Plaintiff concurs her age discrimination claim should be dropped. (Dkt. 32-1, at 46)

Accordingly, Defendant’s motion for judgment on Count III is granted. 

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management position. The primary responsibilities are: handling incoming customer calls

regarding disconnecting or cancelling service, attempting to retain business, resolving

customers’ problems, and when possible, attempting to sell additional products or services.

(See, e.g., Dkt. 32-24, Kapus Dep. at 7.) Service representatives report to first-level coach

managers, who in turn report to a Center Sales Manager (CSM). (Dkt. 30, at 12.) The CSM

reports to a General Manager (GM), who oversees multiple call centers. (Id.)

Each Plaintiff took FMLA or disability leave at some point during their tenure. Pamela

Leslie took four months after suffering a mental breakdown on the job. (Dkt. 33-2, Leslie

Dep. at 19-21.) Rebecca Lee Keeley took leave at various times for stress and irritable

bowel syndrome. (Dkt. 33-14, Keeley Dep. at 26-32.) Pamela Jean Blake used leave

intermittently for migraine headaches (Dkt. 33-4, Blake Dep. at 42), as well as for a longer

period of time due gynecological surgeries. (Id. at 16.) Elizabeth Ann Kapus took

intermittent leave for various conditions, including migraines. (Dkt. 33-24, at 7-8.) And

Jason Lewandowski took intermittent leave due to sleep apnea, upper respiratory

infections, and post-traumatic stress disorder. (Dkt. 33-6, Lewandowski Dep. at 31-32.) 

Ultimately, each Plaintiff resigned from Defendant. Plaintiffs claim they were targeted

because they had disabilities and took FMLA leave. As a result of the allegedly intolerable

working conditions, Plaintiffs claim they had no choice but to resign. This suit followed.

II. Summary Judgment

It is well established that summary judgment under Federal Rule of Civil Procedure

56 is proper when 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). When

reviewing the record, “the court must view the evidence in the light most favorable to the

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non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v. Sierra

Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (internal citation omitted).

“[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

III. Analysis

A. FMLA and PWDCRA

Plaintiffs allege Defendant unlawfully retaliated against them in violation of the FMLA

and PWDCRA.2 (Dkt. 12, at ¶¶130-31, 135.) To establish a prima facie case of retaliation

under both statutes, a plaintiff must show (1) she was engaged in protected activity; (2) the

employer knew of this exercise of the plaintiff’s protected rights; (3) the employer

subsequently took an employment action adverse to the plaintiff; and (4) there was a

causal connection between the protected activity and the adverse employment action.

Festerman v. Cty. of Wayne, 611 F. App’x 310, 319 (6th Cir. 2015) (FMLA); Hurtt v. Int’l

Servs., Inc., 627 F. App’x 414, 422 (6th Cir. 2015) (PWDCRA). 

Defendant argues each Plaintiff voluntarily resigned and thus summary judgment

must be granted in its favor because Plaintiffs cannot establish an adverse employment

action taken against them. (Dkt. 30, at 42.) The Court disagrees. 

1. Constructive Discharge

Plaintiffs allege Defendant took an employment action adverse to them by

constructively discharging them. Constructive discharge can constitute an adverse

 2For purposes of this motion, Defendant does not seek summary judgment on the basis

of whether Plaintiffs are disabled as defined under the PWDCRA. (Dkt. 30, at 41.)

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employment action. Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 451

(6th Cir. 2005). To demonstrate constructive discharge, a plaintiff must show 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. Id. 

a. Intolerable Working Conditions

Working conditions are “objectively intolerable” when “a reasonable person in the

plaintiff’s shoes would feel compelled to resign.” Festerman, 611 F. App’x at 320 (internal

quotation marks omitted). The Sixth Circuit considers several factors when determining

whether a reasonable person would feel compelled to resign, including: demotion; reduction

in salary; reduction in job responsibilities; reassignment to menial or degrading work;

reassignment to work under a supervisor; badgering, harassment, or humiliation by the

employer calculated to encourage the employee’s resignation; or offers of early retirement

or continued employment on terms less favorable than the employee’s former status. Id.

This list, however, is not exhaustive; and while hurt feelings and public criticism alone are

insufficient, the Court may consider any facts it deems relevant. See id. 

Here, there is significant evidence of difficult working conditions that existed for all

Plaintiffs. First, each Plaintiff testified that he or she was told or otherwise made aware that

there was a policy to target FMLA users so as to try to move them out of the business.

(See, e.g., Dkt. 33-2, at 40; Dkt. 33-14, at 48; Dkt. 33-4, at 39-40; Dkt. 33-24, at 40-41; Dkt.

33-6, at 69.) Several managers similarly testified that they were instructed by upper

management to target FMLA and disability users for termination and discipline. See Brister

v. Mich. Bell Tel. Co., No. 14-cv-11950, 2016 WL 74870, at *1, 8 (E.D. Mich. Jan. 7, 2016)

(discussing many of the same depositions).

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For example, Sean Brister,3

 a CSM from 2002-2013, testified that she was told by the

GM that she did not “move fast enough or target employees that used FMLA.” (Dkt. 33-9,

Brister Dep. at 22.) Brister explained that the GM, Geoffrey Lee, instructed her to discipline

only those sales representatives who used FMLA when conducting performance reviews.

(Id. at 24.) When asked if she could recall specific meetings in which she was given the

direction to target employees who used disability or FMLA leave, Brister testified “it was too

numerous for me to recount every one.” (Id. at 47.) As the CSM in the Port Huron location

from 2002-2013, between eight and fourteen first-level coach managers reported to Brister

at a time. (Id. at 8.) Many of these coach managers were Plaintiffs’ direct supervisors.

Joseph Gouin, a first-level coach for at least four of the five Plaintiffs, testified that he

targeted FMLA users after being instructed to do so by management. (Dkt. 33-20, Gouin

Dep. at 5-8, 18-21.) He stated he was instructed to move consistent users of FMLA time

“out of the business” and that he would receive a report with a list of employees’ names to

target. (Id. at 5.) He targeted FMLA users by “searching for things that the employee did

incorrectly and finding ways to take corrective action.” (Id. at 7.) 

Tracy Domozik4

 a first-level coach for at least three Plaintiffs, testified that due to

attendance problems, “we wanted to start looking at who we rewarded when it came to

FMLA, those who used FMLA and those who didn’t use FMLA.” (Dkt. 32-19, Domozik Dep.

at 8.) When winners were announced for an office contest, Domozik sent an email to select

 3Ms. Brister’s new last name is Dupree (Dkt. 32-10, at 3); the Court refers to her by her

former last name. 

 4Ms. Domozik’s new last name is Turner (Dkt. 32-19, at 3); the Court refers to her by her

former last name.

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coaches, stating, “These 3 winner’s [sic] all abuse FMLA----maybe we should verify that

1st??????” (Dkt. 33-22.) Domozik explained that she sent the email because she had been

directed by Lee “that we don’t want to reward those who are not coming to work.” (Dkt. 32-

19, at 10.) And while the email referred only to FMLA abusers, she testified that she and

her supervisors often discussed both FMLA abusers and more generally, FMLA users. (Id.

at 9.) Each Plaintiff received or knew about this email. (Dkt. 33-22; Dkt. 33-6, at 61; Dkt.

33-4, at 24.)

On November 11, 2011, an individual in Defendant’s operations department sent an

email to several GMs (including Port Huron’s GM) stating, “Come to Work is our #1 priority

... . Do not EVER let me walk into one of your centers and NOT see ... daily callouts, [an

attendance ranking] report in PLAIN sight and updated monthly ... .” (Dkt. 33-46.) The email

continued, “I want an explanation for each of the problem children. Is it a legitimate issue

(cancer, etc.). If not, what are you going to do to move this person OUT OF THE

BUSINESS before FMLA starts back over on January 1?” (Id.) 

The “daily callouts” referenced above were signs that were posted in the office every

day with the number of people who had called in or were otherwise absent; this number

purportedly included employees who were out on FMLA and disability leave, but not those

on vacation. (See, e.g., Dkt. 33-4, at 25.) Plaintiffs further testified that management would

have meetings instructing employees to “get your peers to work” and to “put the pressure

on them or the center will close.” (Id.) These actions, Plaintiffs contend, “contributed to a

hostile atmosphere and were intended to pit workers against fellow employees who were

using legally-approved FMLA leave.” (Dkt. 12, at ¶ 61.) Additional facts specific to each

Plaintiff are set forth in the analyses, below.

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i. Pamela Leslie

In 2009, Leslie states she was told by supervisors to encourage her fellow employees

to come to work. (Dkt. 33-2, at 13.) When she asked whether her own job was at risk, she

was told, “as long as you come to work, you shouldn’t have to worry.” (Id.) After this

meeting, Leslie sent out an office-wide email stating that employees who were “abusing the

use of FMLA ... should exit the business.” (Id.) 

In 2011, Leslie took her own FMLA leave after suffering a mental breakdown on the

job. (Id. at 19.) Leslie alleges she was targeted and harassed for taking FMLA leave in a

number of ways. First, the day she returned from leave she received a final written warning

for violating Defendant’s attendance policy, with no advance notice that she had exhausted

her FMLA leave,5

 nor a verbal or first written warning.(Id. at 30-32.) Leslie testified she felt

distraught, targeted, and very nervous upon receiving the warning on her first day back

from a disability stress leave because if she was “a minute late” she could now face

termination. (Id. at 32-33.)

Leslie also alleges she was targeted by her supervisor, Connie Hayes. She claims

Hayes reviewed her performance for not meeting her adherence target for one day, which

Leslie claims was unusual. (Id. at 21.) Leslie’s co-worker testified that she witnessed

Hayes’s harassment of FMLA users including Leslie. (Dkt. 33-23, at 28.) In addition, Leslie

alleges she was targeted by not getting proper training on policy changes, promotions, and

new processes, which led to her making mistakes on calls with customers. (Dkt. 33-2, at

42-44.) In January 2012, Leslie received a low “scorecard” (a monthly review tool used by

 5Plaintiff also alleges the failure to provide at least five days notice violates employer

notice requirements under 29 C.F.R. § 800.300(d)(5). (Dkt. 32-1, at 43.)

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Defendant) for the month of November, which she claims may not have been adjusted for

partial days worked. (Id. at 21.) Six days later, Leslie went back on leave for stress. (Id. at

34.) Plaintiff resigned in March 2012. (Id. at 24.)

Viewing the facts in the light most favorable to Leslie, there is at least a genuine issue

of fact as to whether Leslie experienced intolerable working conditions. Two of Leslie’s

managers, Domozik and Gouin, testified that a policy to target FMLA users existed; prior

to taking her own leave, Leslie was encouraged by management to tell her co-workers to

come to work and was told her own job would not be at risk as long as she came to work;

and after taking her own FMLA leave, she received a final written warning for unexcused

absences on her first day back. Moreover, she claims she did not receive training and was

monitored more closely by supervisors because of her FMLA use. Although Leslie does not

allege that she was demoted, that her salary or job responsibilities were reduced, or that

she was reassigned to do menial or degrading work, she has alleged that she was targeted

and harassed by her managers in a way that was calculated to encourage her resignation.

A reasonable jury could conclude that conditions were so intolerable that someone in

Leslie’s shoes would feel compelled to resign.

ii. Rebekah Lee Keeley

Keeley claims she was targeted in a number of ways. First, she claims her manager,

Joseph Gouin, targeted her for taking FMLA time. (Dkt. 33-14, at 44.) Gouin does not

dispute this. In fact, he admits that the GM would show the coaches “who FMLA users

were. And ... those were the representatives who were targeted.” (Dkt. 33-20, at 5.) With

specific regard to Keeley, Gouin stated, “it seem[ed] like there was extra focus through the

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years with [Keeley]” and his manager asked him to put “additional coaching ... on [Keeley].”

(Id. at 19-20.) 

In addition, Keeley was at a meeting at which manager Pearlanne Pollard allegedly

announced an “asses in the seats” policy targeting FMLA users. According to Keeley,

Pollard said, “Your mother-in-law could have a stroke and ... you still need to come to work.

Your butt still needs to be in your seat. Your husband could have a heart attack. You still

need to be at work.” (Dkt. 33-14, at 44-45.) Keeley claims Pollard would “hover” around her

desk or wait for her during sign-in or shift changes. (Id. at 52.) Keeley also testified

regarding several times when she was disciplined for tardiness. On more than one

occasion, Keeley claims she was disciplined for being only a few minutes late. (Id. at 53-54,

70-71.) According to Keeley, management refused to disallow the tardies and wouldn’t

allow her to use “flex time” (flexible scheduling options). (Id.) 

Shortly before her resignation, Keeley states she returned from leave and found her

belongings in a corner. (Id. at 38.) She states that her new manager, Tosha Hall, treated

her in a “hostile” and “demeaning fashion.” (Id. at 39, 49.) On one occasion, Hall allegedly

pulled Keeley’s attention away from a customer call and told her, “Oh I’m going to spend

a lot of time with you little girl.” (Id. at 49-50.) A co-worker submitted a declaration swearing

that she observed this continuous harassment, noting that she saw Hall at Keeley’s desk

three times more than anyone else’s. (Dkt. 33-23, at 17.) Keeley stated in her resignation

letter, “This is no longer a healthy work environment for me ... I am very excited to start my

new journey and walk out of my golden handcuffs.” (Dkt. 33-38.)

There is ample testimony and evidence suggesting Keeley was subjected to targeting

and harassment; her manager even admitted that “there was an extra focus” on Keeley

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with regard to coaching and observation. The Court cannot conclude no reasonable jury

would find Keeley’s working conditions rose to the level of being objectively intolerable.

iii. Pamela Jean Blake

Blake served as a “service leader” at various times throughout her employment. This

position required covering the floor, helping other employees, getting assistance from

managers, and taking over phone calls with irate customers. (Dkt. 33-4, at 11.) According

to Blake, being a service leader came with additional benefits, including extra pay and time

off the line. (Id. at 11.) In 2010 or 2011, however, Blake lost the position and claims she

was told by management that FMLA users were no longer eligible. (Id. at 11-12.)

Blake’s manager, Joseph Gouin, admits he believes he targeted Blake because she

took FMLA and disability time. (Dkt. 33-20, at 18.) He “kn[e]w she exhausted all her FMLA

time” and “had a job accommodation” and he was “listening for extra things” when he was

coaching and observing Blake’s performance. (Id. at 17-19.) This additional focus, Gouin

believed, led to lower results on Blake’s scorecard reviews. (Id. at 18.) Blake felt targeted

in other ways, as well; for example, she testified that people who did not use FMLA leave

“could sign out extra to go to the bathroom or they could take a little more relaxed time off

in order to catch up” with work, while Blake could not. (Dkt. 33-4, at 39.) 

Based on these facts, a reasonable jury could conclude that Blake experienced

intolerable working conditions. First, she allegedly lost her position as service leader

because she used FMLA. This fact alone would likely be sufficient to survive summary

judgment. See Festerman, 611 F. App’x at 321 (reversing grant of summary judgment to

employer where the plaintiff alleged modification of his job requirements so that he could

no longer fulfill the new requirements). But here, Blake has also put forth significant

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evidence of harassment, including the testimony of her manager admitting that he believes

he targeted Blake for additional performance reviews and discipline because she used

FMLA and disability leave. The evidence is sufficient to create a genuine issue of fact as

to whether Blake suffered intolerable working conditions. 

iv. Elizabeth Ann Kapus

Kapus claims she was harassed and targeted by her supervisors in a number of

ways. Tosha Hall, one of Kapus’s managers, allegedly targeted Kapus by: placing her desk

in the front so Hall could hear all her calls; making “derogatory verbal statements” to her,

such as “you suck;” and calling Kapus up to her desk to reprimand her nearly every other

day. (Dkt. 33-24, at 45-47.) Joseph Gouin was another one of Kapus’s managers. (Dkt. 33-

20, at 17.) Although Gouin couldn’t recall whether he targeted Kapus specifically, as noted

above he has admitted he targeted FMLA users. (Id.) 

Kapus also testified that a supervisor told her that her job could be in jeopardy due

to her absences. (Dkt. 33-24, at 32.) She received several written warnings and was put

on coach action plans. Kapus further claims she was denied flex time on many occasions

and also denied sufficient training to become familiar with new systems and products after

returning from leave. (Id. at 14-15, 19, 41-42.) In addition, she states she experienced

“questioning from co-workers” about her absences; after undergoing knee surgery, for

example, one co-worker asked Kapus if she had “Dr. Summeroff.” (Dkt. 33-24, at 49.)

In January 2014, Kapus considered resigning because she felt “defeated.” (Id. at

37-38.) After meeting with a financial planner, however, she decided to stay. (Id.) In

October 2014, Kapus had a panic attack on her way to work. (Id. at 48.) According to

Kapus, her doctor told her she needed to find a “new gig.” (Id.) Kapus met with a

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second financial planner and determined she could resign from a financial perspective.

(Id. at 38.)

Viewing the evidence in the light most favorable to Kapus, there is a genuine issue

of fact as to whether Kapus experienced objectively intolerable work conditions. On the

one hand, Kapus considered quitting at least eight months prior to doing so but chose

not to until meeting with a second financial advisor and determining she could resign

from a financial perspective. In addition, Kapus does not allege any demotion, loss of

salary, or work responsibilities. On the other hand, however, there is evidence

suggesting Kapus was harassed in a way calculated to encourage her resignation.

Kapus’s manager has admitted he was told to and did target FMLA users to try to “move

them out” of the business and, according to Kapus, other supervisors told her “you

suck” and that her job could be in jeopardy due to her absences. Kapus has presented

sufficient evidence, when viewed in her favor, to support a finding that intolerable work

conditions existed.

v. Jason Lewandowski

Lewandowski testified that managers would frequently discuss FMLA leave with

him. (See, e.g., Dkt. 33-6, at 52-55.) Several senior managers, including Sean Brister

and Jeremy Lewandowski (his brother), specifically told him that flex time would not be

offered to FMLA users. (Id. at 55.) Moreover, Lewandowski states that Brister told him

about a “list” that the managers received, which included names of people who used

FMLA. (Dkt. 32-7, at 55-56.) As a union representative, Lewandowski also states that

he observed management refuse to settle certain employees’ grievances if the

employee was someone who “takes too much FMLA time.” (Id. at 52.)

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Lewandowski also states his experience working under supervisor Lawunda

Jackson was “living your entire day where she’s going to harass you about every little

aspect of every little thing.” (Id. at 50). According to Lewandowski, she told him he was

taking too much FMLA time and hurting the team. (Id.) After Lewandowski received a

suspension for unsatisfactory attendance, he testified that he believed he was “on the

verge of termination” because once an employee reached “suspension level” for

attendance violations, “[y]ou could end up with a flat tire and lose your job as a result.”

(Id. at 20.) 

In early 2015, Lewandowski claims his new supervisor, Jessica Curtiss, told him

that the company wanted to “drive out people who used FMLA.” (Id. at 69.) He later

discovered that Curtiss was “pulling more calls than should be pulled” for his review. (Id.

at 42.) According to Lewandowski, prior to taking FMLA leave, only two calls would be

pulled for evaluation; but when he returned from FMLA leave, six evaluative calls were

pulled for review. (Id.) Shortly thereafter, he decided to resign. (Id. at 42-44.)

While Lewandowski does not allege demotion, reassignment, or a reduction in his

salary, the evidence of harassment is significant. Viewing the facts in the light most

favorable to Lewandowski, the Court concludes there is a genuine issue of fact as to

whether he was subjected to intolerable working conditions.

b. Intent

With regard to the intent requirement, “intent can be shown by demonstrating that

quitting was a foreseeable consequence of the employer’s actions.” Festerman, 611 F.

App’x at 321-22 (internal quotation marks omitted). Based on the facts alleged and

supported by the record, intent can be reasonably inferred here. Many of Plaintiffs’

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supervisors testified that a policy or directive to target FMLA users for discipline or

discharge existed. The goal and purpose of the targeting, according to their testimony,

was to move FMLA users out of the business. In addition, Plaintiffs were told their jobs

were at risk because they were using too much FMLA and were discouraged on a

regular basis from taking protected leave by their superiors and peers. There are ample

examples in the record of harassment of Plaintiffs seemingly designed to encourage

their resignation. The Court concludes there is at least a genuine issue of fact as to

whether Defendant deliberately created intolerable working conditions for Plaintiffs with

the intent to force their resignation. 

Based on the above evidence, Plaintiffs have put forth sufficient evidence to

establish an adverse employment action, as well as a prima facie case of unlawful

retaliation. As such, Plaintiffs’ FMLA and PWDCRA claims will survive Defendant’s

motion for summary judgment.

B. Lost Wages and Benefits

Finally, Defendant seeks summary judgment on four Plaintiffs’ claims for lost

wages and benefits. Specifically, Defendant argues Leslie, Blake, Lewandowski, and

Kapus have not engaged in reasonable efforts to mitigate their damages by searching

for comparable employment, and thus are ineligible for such damages. (Dkt. 30, at 47-

48.)

As Defendant notes, a plaintiff must use reasonable diligence to find substantially

equivalent employment. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982). Defendant,

however, has the burden to show failure to mitigate damages. Taylor v. Invacare Corp.,

64 F. App’x 516, 523 (6th Cir. 2003). Indeed, “[t]he defendant must show that

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substantially equivalent positions were available and the plaintiff failed to use

reasonable diligence in seeking them out.” Id.

Here, Defendant has put forth no evidence regarding the availability of

substantially equivalent positions. And “in general, the obligation to mitigate is largely an

inquiry into reasonableness which is properly within the province of the jury.” Wolfe v.

Vill. of Brice, Ohio, 997 F. Supp. 939, 945 (S.D. Ohio 1998). Accordingly, the Court

cannot conclude that as a matter of law that Plaintiffs’ right to lost pay has been vitiated

by any failure to mitigate.

IV. Conclusion

For the above-stated reasons, the Court DENIES Defendant’s motion for summary

judgment as to Plaintiffs’ FMLA, PWDCRA, and lost wages claims. The Court GRANTS

Defendant’s motion for summary judgement as to Plaintiff Pamela Leslie’s age

discrimination claim, and as such, Count III of the amended complaint is hereby

DISMISSED. 

SO ORDERED.

S/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: August 9, 2016

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

record on August 9, 2016, by electronic and/or ordinary mail.

S/Carol J. Bethel 

Case Manager

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