RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0014p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GWENDOLYN DONALD,

 Plaintiff-Appellant,

v.

SYBRA, INCORPORATED, dba Arby’s,

 Defendant-Appellee.

X

-

-

-

-

>

,

-

-

-

N

No. 10-2153

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 09-12252—Thomas L. Ludington, District Judge.

Decided and Filed: January 17, 2012 

Before: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Mandel I. Allweil, HURLBURT, TSIROS & ALLWEIL P.C., Saginaw,

Michigan, for Appellant. E. Jason Blankenship, McDONALD HOPKINS PLC,

Bloomfield Hills, Michigan, Douglas B. Schnee, McDONALD HOPKINS LLC,

Cleveland, Ohio, for Appellee. 

_________________

OPINION

_________________

COLE, Circuit Judge. Gwendolyn Donald worked for Sybra LLC (“Sybra”) at

its Arby’s restaurants for over two years as an assistant manager. During this period,

Donald suffered a number of health problems, forcing her to miss a substantial amount

of work. In February of 2008, Sybra terminated Donald when it suspected that Donald

entered customer orders improperly in order to steal cash from her register. Donald sued

Sybra, alleging various theories of discrimination and retaliation. The district court

granted summary judgment in favor of Sybra, which Donald now appeals. We AFFIRM.

1
No. 10-2153 Donald v. Sybra, Inc. Page 2

I. BACKGROUND

Sybra hired Donald in late 2005 as an assistant manager at its Arby’s restaurant

on Holland Avenue in Saginaw, Michigan. Shortly thereafter, Donald began

experiencing a number of serious health problems that required her to take leave from

her position. In 2006, she missed a week of work for gallbladder surgery, and in 2007

she missed approximately eight weeks of work to receive treatment for ovarian cysts and

renal stones. Although the record is unclear as to whether the 2006 absence was under

the Family and Medical Leave Act (“FMLA”), there is no dispute that the 2007 absence

was.

Donald returned from her 2007 treatment on September 15, 2007, and was

subsequently transferred to a different Saginaw store, this time on State Street. There,

Donald worked under Kyle Plum, the store manager, Margo Houston-Barocko, the

district partner and Plum’s supervisor, and Eric Ballance, a senior director of operations

and Houston-Barocko’s supervisor. Ballance visited the State Street store only a few

times a year, though Houston-Barocko was there as often as twice per week. Donald

alleges that while working next to each other in the store, Houston-Barocko, cognizant

of Donald’s health problems, said that Donald “should be disabled” like HoustonBarocko’s husband. Donald does not remember when this conversation took place,

though she remembers that it occurred sometime between October 2007 and January

2008. Houston-Barocko denies making the statement.

On February 14, 2008, Kyle Plum, Donald’s supervisor, examined a number of

receipts from Donald’s drive-in window drawer showing irregularities in how customers

were charged. The receipts showed that orders were taken at full price, customers were

given a full price total, but that the orders were then changed to a discounted price.

Plum stated that he discovered that Donald’s drawer was $4.00 or $5.00 short. After

notifying his supervisors, Plum donned a headset to listen in on Donald’s orders over the

next few days. After comparing the orders Donald took to the figures entered into her

register, Plum suspected that Donald improperly discounted the orders and pocketed the

difference. Plum shared his information with Houston-Barocko.
No. 10-2153 Donald v. Sybra, Inc. Page 3

Donald received treatment for ongoing pain and renal stones on her regularly

scheduled days off on February 25 and 26, 2008. The treatment caused Donald to

experience extreme pain. On February 26, Donald called Plum to notify him that she

would not be able to return to work until February 29, but provided neither formal

written notice nor a request for FMLA leave. Upon her return on February 29, Plum,

Houston-Barocko, and Ballance confronted Donald about the shortage in her drawer and

their investigation. Donald denied all allegations of theft, and refused to sign a written

form acknowledging the theft. Her employment was then terminated, though Sybra did

not object to her receipt of unemployment compensation.

After her termination, Donald filed a complaint against Sybra on the company’s

grievance hotline. A company representative contacted Donald and, in addition to

providing three weeks of paid leave, offered her employment at one of the Detroit stores.

Donald declined the offer. Donald then filed a complaint with the EEOC and Michigan

Department of Civil Rights, which appears to have been unsuccessful.

On June 11, 2009, Donald filed a complaint in the district court, alleging that

Sybra’s termination of her employment violated her civil rights. Specifically, Donald

alleged that Sybra fired her because of her serious medical conditions, and that such an

action violates the FMLA, the Americans with Disabilities Act (“ADA”), and

Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”). On May 28, 2010,

Sybra moved for summary judgment, which the district court granted on August 11,

2010.

The district court noted that while there are “substantial questions” concerning

whether Donald established a prima facie case for FMLA interference and retaliation,

it was unnecessary to discuss those issues because Donald failed to demonstrate that

Sybra’s justification for her termination was pretextual. The district court also denied

relief on the ADA and PWDCRA claims, finding that there was “insufficient evidence

connecting the alleged disability to the decision to end her employment . . . .” Donald

filed a timely notice of appeal.
No. 10-2153 Donald v. Sybra, Inc. Page 4

II. ANALYSIS

A. Standard of Review

We review the district court’s grant of summary judgment de novo. Blackmore

v. Kalamazoo Cnty., 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper

when there is no genuine issue of material fact and the moving party, Sybra, is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a). Sybra bears the initial burden of

demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Sybra may satisfy this burden by offering affirmative

evidence that negates an element of Donald’s claim or, as it attempts to do here, by

pointing to an absence of evidence to support the non-moving party’s claim. If Sybra

satisfies its burden, Donald must then set forth the specific facts showing that there is a

genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).

In evaluating the evidence, we draw all reasonable inferences in favor of Donald.

Blackmore, 390 F.3d at 895 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)). A mere scintilla of evidence in support of Donald’s position

will be insufficient for her claim to survive summary judgment. Rather, there must be

enough evidence such that the jury could reasonably find for her. Anderson, 477 U.S.

at 251.

B. FMLA Claims

Donald argues that Sybra’s actions give rise to two causes of action under the

FMLA. Donald first argues that because she was terminated while on leave, Sybra

violated 29 U.S.C. § 2615(a)(1), which makes it “unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to exercise” any FMLA provision.

We have previously held that “[i]f an employer takes an employment action based, in

whole or in part, on the fact that the employee took FMLA-protected leave, the employer

has denied the employee a benefit to which he is entitled.” Wysong v. Dow Chem. Co.,

503 F.3d 441, 447 (6th Cir. 2007). To establish a prima facie case of FMLA

interference, Donald must show that
No. 10-2153 Donald v. Sybra, Inc. Page 5

(1) she 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 her intention

to take leave; and (5) the employer denied the employee FMLA benefits

to which she was entitled.

Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006) (citing Walton v.

Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)).

Donald next argues that Sybra retaliated against her for taking FMLA leave. The

FMLA prohibits an employer from “discharg[ing] or in any other manner

discriminat[ing] against any individual for opposing any practice made unlawful by this

subchapter.” 29 U.S.C. § 2615(a)(2). To establish a prima facie case of FMLA

retaliation, Donald must show that

(1) she was engaged in an activity protected by the FMLA; (2) the

employer knew that she was exercising her rights under the FMLA;

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

employer took an employment action adverse to her; and (4) there was

a causal connection between the protected FMLA activity and the

adverse employment action.

Killian, 454 F.3d at 556 (citing Arban v. West Publ’g Corp., 345 F.3d 390, 404 (6th Cir.

2003)).

There are disputes as to whether Donald’s absence on February 27 and 28 was

an exercise of her rights under the FMLA, and whether Donald provided her supervisors

with adequate notice of her intention to take leave. This is an intensely factual

determination, with a number of regulations governing how employees and employers

must act based on the nature of the notice, the nature of the reason for leave, and the

exigency of the leave request. See generally 29 C.F.R. § 825.302. There is also dispute

as to whether there is a causal connection between Donald’s leave and her eventual

termination. 

The district court determined that it need not undertake this factual inquiry,

because even if Donald could prove one or both of her prima facie burdens, relief would

still be unwarranted. The district court reasoned that under the framework established
No. 10-2153 Donald v. Sybra, Inc. Page 6

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a successfully pleaded

prima facie case, either for FMLA interference or retaliation, would shift the burden to

Sybra to present a legitimate, nondiscriminatory reason for its decision to terminate

Donald. If Sybra successfully carries this burden, Donald’s claims could survive

summary judgment only if she can show that Sybra’s stated reasons are a pretext for

unlawful discrimination. The district court effectively gave Donald the benefit of the

doubt and assumed that she could establish both prima facie cases. This boon

notwithstanding, the district court determined that Donald produced insufficient

evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were

pretextual.

There is no doubt that this Court applies the McDonnell Douglas burden-shifting

framework to FMLA retaliation suits when the plaintiff produces indirect evidence of

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

See Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th Cir. 2006) (“This court applies

the familiar burden-shifting test articulated in [McDonnell Douglas] to retaliation claims

under the FMLA.”) (citations omitted); Skrjanc v. Great Lakes Power Serv. Co., 272

F.3d 309, 315-16 (6th Cir. 2001). Whether McDonnell Douglas applies to interference

claims is not as clear.

Other courts have made this distinction explicit. See, e.g., Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir. 2005) (“[Our] approach to

an FMLA claim of retaliation is to permit . . . the ultimate burden of proof [to remain]

on the plaintiff . . . . In contrast, employer motive plays no role in a claim for substantive

denial of benefits.”) (citations omitted); Diaz v. Fort Wayne Foundry Corp., 131 F.3d

711, 712 (7th Cir. 1997) (“Applying rules designed for anti-discrimination laws to

statutes creating substantive entitlements is apt to confuse, even if the adaptation is

cleverly done.”). Our own district courts have called our attention to this dilemma as

well. Schmauch v. Honda of Am. Mfg., Inc., 295 F. Supp. 2d 823, 829 (S.D. Ohio 2003)

(“The appropriate framework for analysis of claims under § 2615(a)(1) has yet to be

settled by the Sixth Circuit.”) (citing Hoge v. Honda of Am. Mfg., Inc., 2002 WL 485028,
No. 10-2153 Donald v. Sybra, Inc. Page 7

at *5 (S.D. Ohio Feb. 14, 2002), rev’d in part, 384 F.3d 238 (6th Cir. 2004)) (“While the

Sixth Circuit has not addressed the analysis to be used for a purported violation of this

section, other courts have concluded that the familiar burden-shifting analysis set forth

in [McDonnell Douglas] does not apply to § 2615(a)(1) claims.”)). The morass is

widespread. See Stacy A. Manning, Application of the Interference and Discrimination

Provisions of the FMLA Pursuant to Employment Termination Claims, 81 Chi.-Kent L.

Rev. 741, 748 (2006) (“The inconsistency as to which provision—and therefore which

standard—to apply exists between the district and circuit courts, within the individual

circuit courts, and among all of the circuit courts.”).

In Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008), this Court stated that, in

an FMLA interference claim, an employer may prove it had a legitimate reason unrelated

to the exercise of FMLA rights for terminating the employee. The Court went on to say

that the plaintiff could rebut the employer’s reason by showing that the proffered reason

had no basis in fact, did not motivate the termination, or was insufficient to warrant the

termination. Id. The Court effectively adopted the McDonnell Douglas tripartite test

without saying as much. Because “[r]eported panel opinions are binding on subsequent

panels,” 6 Cir. R. 206(c), Grace requires the conclusion that the district court correctly

applied McDonnell Douglas to both Donald’s interference and retaliation claims.

With this framework in mind, we now turn to the substance of Donald’s FMLA

claims. Donald repeatedly calls our attention to the peculiar timing of her termination.

Plum discovered the original shortage on February 14, he investigated from February 14

until February 22, yet the termination did not occur until February 29, the day she

returned from her medical absence. Donald fails to mention that February 29 was the

first day after the investigation concluded that she worked, and so the first time that a

decision made a week earlier could be relayed to her. Even if this were not the case, the

law in this circuit is clear that temporal proximity cannot be the sole basis for finding

pretext. Skrjanc, 272 F.3d at 317 (“[T]emporal proximity is insufficient in and of itself

to establish that the employer’s nondiscriminatory reason for discharging an employee

was in fact pretextual.”).
No. 10-2153 Donald v. Sybra, Inc. Page 8

Donald further argues that her conversation with Houston-Barocko in late 2007

or early 2008, in which Houston-Barocko allegedly told Donald that she should go on

disability “like [Houston-Barocko’s] husband,” provides an additional inference of

discriminatory intent. An understanding of the context of that conversation, which

Houston-Barocko insists never occurred, belies Donald’s assertion. The conversation

allegedly took place while both women worked alongside each other, and as HoustonBarocko and Donald talked about their personal lives. There is no subtext of animus in

the comment. To achieve the result that Donald insists upon requires an inference that

violates the fundamental rule that “[t]he mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient” to survive summary judgment.

Anderson, 477 U.S. at 252.

The remainder of Donald’s arguments address the accusation of theft. She

vociferously denies the allegation, and argues that there are reasons as to why orders

may have irregularities and why her drawer may have been short. This is irrelevant. We

have adopted the honest belief rule, reasoning that it is not in the interests of justice for

us to wade into an employer’s decisionmaking process. Michael v. Caterpillar Fin.

Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007). It is instead the employer’s belief,

and whether it is informed and nondiscriminatory, with which we are concerned. We

do not require that the employer arrived at its decision in an “optimal” matter, id. at 599,

but that it “reasonably relied on the particularized facts that were before it at the time the

decision was made.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117

(6th Cir. 2001) (internal quotation marks omitted).

Donald’s claims fundamentally rest on the timing of Sybra’s decision to

terminate her employment, which, we admit, gives us pause. But that alone is not

enough, and her other arguments are no more persuasive. Whether Sybra followed its

own protocol, or its decision not to prosecute Donald, or even Donald’s history of

employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s

decision was improper. The district court therefore correctly dismissed Donald’s FMLA

claims.
No. 10-2153 Donald v. Sybra, Inc. Page 9

C. ADA & PWDCRA Claims

Donald asserts that she is disabled within the meaning of the ADA and the

PWDCRA, and that this disability motivated Sybra’s decision to terminate her. To state

a claim under the ADA, Donald must establish that she is an individual with a disability,

that she is otherwise qualified to perform the job requirements, with or without

reasonable accommodation, and that Sybra discharged her solely because of the

handicap. Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir. 2002) (citing Monette

v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)). The PWDCRA

“substantially mirrors the ADA, and resolution of a plaintiff’s ADA claim will generally,

though not always, resolve the plaintiff’s PWDCRA claim.” Cotter, 287 F.3d at 597.

Donald provides no argument as to why we should treat the claims separately, nor does

our review indicate as much.

To broaden the definition of “disability,” Congress passed the ADA Amendments

Act of 2008, which became effective on January 1, 2009; we have held that those

amendment are not retroactive. Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d 562,

565 (6th Cir. 2009). As Donald’s termination occurred in 2008, the prior version of the

ADA applies, which defined a “disability” as “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment.”

42 U.S.C. § 12102(2) (2006) (current version at 42 U.S.C. § 12102(1)).

Donald argues that she falls under the third prong of the disability definition, in

that Sybra regarded her as having an impairment. In support of this argument, she puts

forth Houston-Barocko’s statement that Donald “should be disabled like [HoustonBarocko’s] husband because [Donald] had all the medical issues.” But, the prior version

of the ADA makes clear that in order to be regarded as disabled, one must be regarded

as having an impairment that limits a major life activity. This difference is technical, but

important.

And Donald agrees. In her brief, she cites to Todd v. City of Cincinnati, 436 F.3d

635 (6th Cir. 2006), in which we reversed a grant of summary judgment for the
No. 10-2153 Donald v. Sybra, Inc. Page 10

employer. In Todd, a former police officer, who had previously been granted a disability

pension, sought employment as a firearms instructor. Id. at 636. City officials denied

him employment because they had doubts as to whether he could “physically do the

demanding work required.” Id. (internal quotation marks omitted). But, the basis for

reversal was not that city officials attached the word “disabled” to the applicant, but their

belief that he could not do the work because of his disability—that is, that he was

impaired from engaging in the major life activity of working. Donald puts forth no such

evidence here. At no point does she assert evidence indicating that Houston-Barocko,

or any other Sybra employee, thought her unable to engage in a major life activity.

Indeed, Donald notes in her brief that everyone at Arby’s, including Houston-Barocko,

believed that she was a good employee. Under the prior version of the ADA, Donald

cannot argue that she was regarded as disabled. We need not determine whether the

2009 amendments would change this outcome.

Examination of the statement’s context further guts Donald’s argument.

Houston-Barocko allegedly made the statement, as previously mentioned, in passing

during a personal conversation, at least two months before the termination occurred. It

was said in a manner neither to insult Donald nor to imply that she could not accomplish

her work, but to assist her. Could animus or discrimination potentially be inferred from

such a statement? Perhaps. But we need only consider “reasonable inferences,” which

this is not, in Donald’s favor. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir.

2011) (citation omitted) (emphasis added).

This isolated remark establishes the whole of Donald’s ADA and PWDCRA

claims. With nothing more, these claims cannot survive Sybra’s motion for summary

judgment. The district court correctly dismissed them.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.