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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Kenneth Williams,

Plaintiff,

v. Case No. 08-14246

Costco Wholesale Corporation, Honorable Sean F. Cox

Defendant.

_______________________________/

OPINION & ORDER

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This employment discrimination and retaliation action is currently before the Court on

Defendant’s Motion for Summary Judgment. The parties have briefed the issues and the Court

finds that oral argument would not significantly aid the decisional process. See Local Rule

7.1(e)(2), U.S. District Court, Eastern District of Michigan. The Court therefore orders that the

motion will be decided upon the briefs. For the reasons that follow, the Court shall GRANT the

motion.

BACKGROUND

Plaintiff filed this action in state court on or about August 22, 2008. Defendant removed

the action to this Court on October 6, 2008. The parties then proceeded with discovery and

Plaintiff was deposed, for the first time, on March 27, 2009. (Pl.’s Dep., Part I).

On April 23, 2009, Plaintiff sought leave to file an amended complaint, so that he could

add a claim under the Family Medical Leave Act, 29 U.S.C. §2601 et seq. (“FMLA”). This

Court granted leave and Plaintiff his filed his Amended Complaint on June 15, 2009, asserting

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the following claims: 

• “Person with Disabilities Act” (Count I), wherein Plaintiff alleges that Defendant

violated Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”) by “using

disability as a motivating factor in terminating” him and by “unfairly evaluating” him; 

• “Disparate Treatment” (Count II), wherein Plaintiff alleges that he “was qualified for his

position and was unfairly denied an opportunity to continue in his position due to his

disability”; 

• “Retaliation” (Count III), wherein Plaintiff alleges that Defendant retaliated against him,

in violation of Michigan’s Elliot Larsen Civil Rights Act, for having filed retaliation and

workers compensation complaints. Plaintiff alleges that “[o]n various occasions, [he]

was informed that the defendant did not like the plaintiff filing either claim or working

with restrictions.”; 

• “Michigan’s Workers Compensation Anti-Retaliation Violations” (Count IV), wherein

Plaintiff alleges that Defendant retaliated against him for having filed workers

compensation claims; and 

• “Violations of the Family Medical Leave Act” (Count VI), wherein Plaintiff alleges that

he “has a disability that causes him to urinate frequently” and that he advised Defendant

of his medical condition. He alleges that Defendant violated his FMLA rights by

terminating him and failing to grant him time off or restore him to his previous position. 

After he filed his Amended Complaint, Plaintiff was deposed again on June 23, 2009. 

(Pl.’s Dep., Part II). Under this Court’s 2nd Scheduling Order, discovery closed on June 30,

2009. Following the close of discovery, Defendant filed its Motion for Summary Judgment on

July 31, 2009. 

This Court’s practice guidelines for motions for summary judgment provide, in pertinent

part, that:

a. The moving party’s papers shall include a separate document entitled

Statement of Material Facts Not in Dispute. The statement shall list in separately

numbered paragraphs concise statements of each undisputed material fact,

supported by appropriate citations to the record. . .

b. In response, the opposing party shall file a separate document entitled

Counter-Statement of Disputed Facts. The counter-statement shall list in

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separately numbered paragraphs following the order or the movant’s statement,

whether each of the facts asserted by the moving party is admitted or denied and

shall also be supported by appropriate citations to the record. The CounterStatement shall also include, in a separate section, a list of each issue of material

fact as to which it is contended there is a genuine issue for trial.

c. All material facts as set forth in the Statement of Material Facts Not in Dispute

shall be deemed admitted unless controverted in the Counter-Statement of

Disputed Facts.

(Docket Entry No. 15).

Both parties complied with the Court’s practice guidelines for motions for summary

judgment to the extent that: 1) along with Defendant’s motion and supporting brief it filed

“Defendant’s Statement of Material Facts Not in Dispute” (“Def.’s Stmt.”) and 2) along with

Plaintiff’s Response, Plaintiff filed “Plaintiff’s Answers to Defendant’s Statement of Material

Facts Not in Dispute” (“Pl.’s Stmt.”).

The following material facts are gleaned from the parties’ statements and the evidence

submitted by the parties.

Defendant Costco Wholesale Corporation (“Defendant” or “Costco”) operates more than

400 membership warehouses, at which it sells brand name merchandise to the public. (Def.’s

Stmt. at ¶ 1; Pl.’s Stmt. at ¶ 1). Defendant maintains one such warehouse, Warehouse 390, in

Livonia, Michigan at 13700 Middlebelt Road. Melodi McCoy (“McCoy”) was the Warehouse

Manager at Warehouse 390 throughout Plaintiff’s employment. (Def.’s Stmt. at ¶ 2; Pl.’s Stmt.

at ¶ 2).

Plaintiff started working for Defendant as a Part-Time Cashier Assistant at Warehouse

390 on October 4, 2005. (Def.’s Stmt. at ¶ 5; Pl.’s Stmt. at ¶ 5). Plaintiff was in school the

entire time that he worked for Defendant. (Pl.’s Dep., Part I, at 84). Plaintiff testified that

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Defendant accommodated his school schedule, scheduling his shifts around his various school

schedules. (Id.).

Plaintiff worked in a variety of positions throughout his employment, including Cashier

Assitant and Cart Crew, Food Court, Front End Assistant, and Member Services Assistant. (Id.). 

Throughout his employment with Defendant, Plaintiff had continual contact with the public. 

(Def.’s Stmt. at ¶ 9; Pl.’s Stmt. at ¶ 9).

Plaintiff worked in the Member Services Assistant position from June 4, 2007 until his

termination on March 19, 2008. As a Member Services Assistant, Plaintiff was responsible, in

part, for watching the exit doors after store hours from his car, contacting store personnel if

employees or members needed entry, and driving his car around the parking lot to monitor the lot

for employee and member security purposes. (Def.’s Stmt. at ¶ 7; Pl.’s Stmt. at ¶ 7). 

In 2006, Plaintiff was diagnosed HIV positive. (Def.’s Stmt. at ¶ 10; Pl.’s Stmt. at ¶ 10). 

Plaintiff testified that throughout his employment with Defendant, he has not taken any

medications for his HIV status. (Pl.’s Dep., Part I, at 192-93). He further testified that during

the time that he was employed by Costco, he was asymptomatic with respect to his HIV status. 

(Id.).

Dr. Tania Little, an infectious disease specialist, is one of Plaintiff’s physicians. (Id.). 

Dr. Little testified that, as of the time of her deposition on May 28, 2009, she had not prescribed

any medications to Plaintiff pertaining to his HIV status. (Little Dep. at 12). Dr. Little further

testified that as of May 28, 2009, Plaintiff is still asymptomatic with respect to his HIV status. 

(Little Dep. at 13). She testified that from an HIV standpoint, Plaintiff has been doing quite

well:

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Q. Quite well, what does that mean?

A. That his numbers, meaning his CD4 cell count and his viral loads, has

never gotten to a point where we needed to start treatment and he has

never had any infections to suggest an AIDS defining illness. So he did

not require any treatment and he has still not required any treatment.

(Little Dep. at 24).

 On or about August 1, 2006, Plaintiff injured his right shoulder when he slipped and fell

at work. Plaintiff filed a workers’ compensation claim. (Def.’s Stmt. at ¶ 14; Pl.’s Stmt. at ¶

14). 

Plaintiff’s physician has advised Plaintiff that his shoulder will not get better unless he has

surgery on his shoulder. (Pl.’s Dep., Part I, at 189-91). Plaintiff decided not to have the surgery,

however, because he is scared that he might “lose his arm.” (Id.). Plaintiff’s doctors have not

told Plaintiff that losing his arm would be a potential risk of the surgery. (Id.).

On March 29, 2007, Dr. Little filled out a job analysis form for a Cart Assistant position

that included a restriction limiting Plaintiff’s work outdoors during inclement weather. (Def.’s

Stmt. at ¶16; Pl.’s Stmt. at ¶ 16). Plaintiff admits that the inclement weather restriction only

applied to the Cart Assistant position. (Def.’s Stmt. at ¶ 17; Pl.’s Stmt. at ¶ 17; Pl.’s Dep., Part

II, at 56). On April 1 and May 4, 2007, Plaintiff submitted medical restrictions limiting the

usage of his right arm. He was working as a Cashier Assistant at that time, which included cart

crew duties, and his restrictions prohibited him from performing certain of the essential functions

of his job (lifting duties). (Def.’s Stmt. at ¶ 18; Pl.’s Stmt. at ¶ 18).

On April 5, 2007, Plaintiff submitted FMLA paperwork to Defendant. (Def.’s Stmt. at ¶

20; Pl.’s Stmt. at ¶ 20). At that time, Plaintiff submitted a “Request for Leave of Absence and

Notification Regarding Family and Medical Leave Act (FMLA) and Other Similar State Leave

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Laws” form that requested a personal medical leave for a serious health condition. (Ex. 10 to

Def.’s Br.). Plaintiff requested time off starting on April 1, 2007 and ending on April 30, 2007. 

(Id.).

On April 18, 2007, however, Plaintiff submitted a new FMLA request, this time

requesting intermittent leave for his HIV condition from March 29, 2007, through March 28,

2008. (Def.’s Ex. 11). The April 18, 2007 request noted that Plaintiff was not presently

incapacitated but could experience frequent episodes of illness in the future that could

incapacitate him for several days. The form did not mention any urination conditions, and did

not state any restrictions about working in inclement weather. Defendant granted Plaintiff’s

FMLA request. (Def.’s Stmt. at ¶ 21; Pl.’s Stmt. at ¶ 21; Def.’s Ex. 11). 

It is undisputed that Plaintiff was never denied FMLA leave by Defendant. (Pl.’s Dep.,

Part II, at 72). Plaintiff took intermittent FMLA leave and testified that on occasions when he

did not feel well he took days off. Defendant allowed him to do so and brought him back to

work after such absences. (Pl.’s Dep., Part II, at 79).

In January 2008, Defendant reduced Plaintiff’s hours. (Def.’s Stmt. at ¶ 26; Pl.’s Stmt. at

¶ 26). Defendant often reduces employee’s hours in January because it experiences reduced

sales after the holidays. (Id.). Shifts are scheduled by seniority by Defendant and the schedules

of full-time employees take precedence. (Def.’s Stmt. at ¶ 28; Pl.’s Stmt. at ¶ 28). Plaintiff had

the lowest seniority in the department and was a part-time employee. (Id.). 

Moreover, Plaintiff attended college throughout his employment with Defendant and

Defendant accommodated Plaintiff’s school schedule, scheduling Plaintiff’s shifts around his

classes. (Def.’s Stmt. at ¶ 29; Pl.’s Stmt. at ¶ 29). Plaintiff’s school schedule for Spring 2008

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limited his availability more than his Fall 2007 school schedule. (Def.’s Stmt. at ¶ 31; Pl.’s Stmt.

at ¶ 31).

Contrary to the allegations in his Complaint and Amended Complaint, Plaintiff admitted at his

deposition that his insurance benefits were not affected by the hours reduction. (Def.’s Stmt. at ¶

27; Pl.’s Stmt. at ¶ 27).

On February 19, 2008, Plaintiff filed a Charge of Discrimination with the Michigan

Department of Civil Rights and Equal Employment Opportunity Commission alleging

retaliation. (Def.’s Stmt. at ¶ 25; Pl.’s Stmt. at ¶ 25). His charge challenged Defendant’s

decision to alter his work schedule.

Plaintiff alleges that on March 3, 2008, he submitted a letter to Defendant from himself,

advising Defendant of his need to frequently urinate. Defendant disputes that it received this

letter. In any event, the letter does not reference Plaintiff as having a condition that could cause

him to urgently or unexpectedly urinate, and it was not prepared or submitted by Plaintiff’s

physicians. (Def.’s Stmt. at ¶ 42; Pl.’s Stmt. at ¶ 42). 

On March 13, 2008, Plaintiff was working as a Member Services Assistant. (Def.’s Stmt.

at ¶ 18; Pl.’s Stmt. at ¶ 18). Again, as Member Services Assistant Plaintiff was responsible for

watching the exit doors after store hours from his car, contacting store personnel if employees or

members needed entry, and driving his car around the parking lot to monitor the lot for employee

and member security purposes. (Def.’s Stmt. at ¶ 7; Pl.’s Stmt. at ¶ 7). On March 13, 2008,

while working for Defendant, Plaintiff was issued a citation by the Livonia Police Department

for urinating in public after Plaintiff urinated in Defendant’s parking lot. (Pl.’s Dep., Part I, at

227 & 229). James Valdez (“Valdez”) was the Night Floor Manager on duty at Warehouse 390

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on that night. (Valdez Decl., attached as Def.’s Ex. 15). On the night of March 18, 2008, Valdez

received a report that a Livonia Police Officer had detained Plaintiff in the parking lot and

Valdez then spoke with Plaintiff and the officer. After Valdez learned that Plaintiff had been

issued a citation for urinating in the parking lot, he sent Plaintiff home for the remainder of his

shift and contacted McCoy to inform her of the situation. (Id.). 

The next day, March 14, 2008, Defendant suspended Plaintiff pending termination for

urinating in the parking lot. (Id.). On March 19, 2008, McCoy terminated Plaintiff for his

misconduct on March 13, 2008, which violated Costco’s work rules. (Def.’s Stmt. at ¶ 40; Pl.’s

Stmt. at ¶ 40).

On March 19, 2008, Plaintiff saw Dr. Iqbal Jan and complained of frequency of

urination. (Jan Dep. at 58). This was the first time that Plaintiff had mentioned any complaints

about urination to Dr. Jan. (Id.). Dr. Jan testified that the medications that Plaintiff had been

taking would not cause him to use the bathroom more frequently. (Id. at 59). Dr. Jan testified

that Plaintiff only complained about frequency of urination on March 19th, not about

incontinence (being unable to control his urination). (Id. at 12-13 & 61-62). 

Dr. Little testified that on January 29, 2009, Plaintiff told her, for the first time, that he

had increased urinary frequency. (Little Dep. at 16). Plaintiff has never told Dr. Little that he

had uncontrolled urination or difficulty controlling his bladder. (Id. at 17).

On the same day of his termination, Plaintiff submitted a note from Dr. Jan stating that

Plaintiff suffers “from HIV and severe anxiety,” and that he “suffers from frequency of urination,

most likely due to anxiety and stress.” (Ex. 17 to Def.’s Motion; Def.’s Stmt. at ¶ 41; Pl.’s Stmt.

at ¶ 41). This was the first time that Plaintiff had provided medication documentation to

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Defendant regarding a condition, and he had already been cited for public urination and

suspended pending termination by the submission date. (Id.). Moreover, the note from Dr. Jan

did not indicate that Plaintiff suffered from incontinence or urgency issues regarding urination. 

(Id.).

During his deposition, Plaintiff testified that he often urinates on himself without

warning, before he can do anything about it. He does not wear a diaper, even though he admits

he could purchase diapers for himself. (Def.’s Stmt. at ¶ 37; Pl.’s Stmt. at ¶ 37). Plaintiff

testified that on the night of March 19, 2008, he began urinating on himself without warning, and

did not have time to get to a restroom. The nearest restroom in the warehouse was more than 30

seconds from the parking lot. (Def.’s Stmt. at ¶ 33; Pl.’s Stmt. at ¶ 33). 

Plaintiff acknowledges that it was against Defendant’s company rules to urinate in

Defendant’s parking lot. (Def.’s Stmt. at ¶ 34; Pl.’s Stmt. at ¶ 34). Plaintiff testified that he is

not aware of any other employees who urinated on company property but were not terminated

for that conduct. (Id.; Pl.’s Dep., Part I, at 232). Plaintiff further admits there is nothing

Defendant could have done to accommodate his alleged condition. (Def.’s Stmt. at ¶ 34; Pl.’s

Stmt. at ¶ 34). 

On at least two other occasions, Defendant has terminated employees who have urinated

on company property. (Minish Decl.). Thus, Plaintiff received the same punishment

(termination) that others have received for similar conduct. (Def.’s Stmt. at ¶ 40; Pl.’s Stmt. at ¶

40). 

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ANALYSIS

A. Disability Discrimination Claims:

“The plaintiff bears the burden of proving a violation of the PWDCRA.” Peden v. City of

Detroit, 470 Mich. 195, 204 (2004). To establish a prima facie case under Michigan’s

PWDCRA, Plaintiff must establish: 1) that he is disabled under the Act; 2) his disability is

unrelated to his ability to perform his job; and 3) he has been discriminated against in one of the

ways delineated in the statute. Id. If he can establish a prima facie case, the burden shifts to

Defendant to articulate a legitimate, non-discriminatory reason for its challenged actions. If

Defendant does so, Plaintiff must present evidence to establish that Defendant’s proffered

reasons are not the true reasons, but a mere pretext for discrimination. Mazur v. Wal-Mart

Stores, Inc., 250 Fed.Appx. 120, 124 (6th Cir. 2007). 

1. Has Plaintiff Established A Prima Facie Case?

Defendant first contends that Plaintiff’s disability discrimination claims under the

PWDCRA fail because he cannot establish a prima facie case. Defendant asserts that Plaintiff

cannot establish a prima facie case because, among other things, he cannot establish that he is

“disabled” under the PWDCRA. 

The PWDCRA “generally protects only against discrimination based on physical or

mental disabilities that substantially limit a major life activity of the disabled individual, but that,

with or without accommodation, do not prevent the disabled individual from performing the

duties of a particular job.” Peden, 470 Mich. at 204; see also M.C.L. § 37.1103(d)(i)(A).

Defendant notes that Plaintiff claims that his shoulder injury, depression and anxiety,

HIV positive status, and urination condition, constitute disabilities. Defendant’s motion asserts

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that Plaintiff “has produced no evidence, however, that these conditions substantially limited one

or more major life activities.” (Def.’s Motion at 9). Defendant’s brief then proceeds to challenge

each alleged disability. 

With respect to his shoulder injury, Defendant notes that an impairment is not considered

“substantial” if it is of merely a temporary nature. (Def.’s Br. at 9) (citing Chiles v. Mach. Shop,

Inc., 238 Mich.App. 462 (1999)). Defendant notes that Plaintiff testified that his doctors have

advised that his shoulder will improve if he has surgery. Defendant contends that “corrective

and mitigating measures must be considered in determining whether a person has a physical or

mental impairment that ‘substantially limits’ a major life activity.” (Def.’s Br. at 10) (citing

Nieman v. Gen. Motors Corp., 2008 WL 4940585 at *6 (E.D. Mich. 2008)).

Defendant also contends that the evidence does not support any finding that Plaintiff’s

depression/anxiety constitutes a disability. Defendant notes that Plaintiff was “only diagnosed

with severe depression (a disability) after he was terminated.” (Def.’s Br. at 10). Defendant

asserts that because Plaintiff’s disabling condition (severe depression) did not begin until after

his termination, the condition does not qualify him for relief. (Id.). Defendant further asserts

that Plaintiff has “provided no evidence that his depression prevented him from working,

performing his job, or engaging in any other activity. See Mohr v. Mich. Dep’t of Corrs., 2006

WL 932986 * 8 (E.D. Mich. Apr. 11, 2006) (plaintiff was not a qualified individual with a

disability where his depression did not ‘considerably or profoundly limit his ability’ to perform

major life activities). Williams continued working after becoming depressed, did not have any

medical restrictions pertaining to his depression, and had the mental capacity to attend college.” 

(Def.’s Br. at 10-11).

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Plaintiff has not alleged, in either his complaint or his Response Brief, that Defendant

violated the PWDCRA by failing to accommodate his medical conditions.

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With respect to his alleged urination condition, Defendant notes that neither of Plaintiff’s

“physicians reported, diagnosed, or even knew about [Plaintiff] having an ‘urgent’ need to

urinate.” (Def.’s Br. at 11). Defendant further asserts that Plaintiff has presented no evidence

demonstrating that his alleged urination condition is anything other than temporary, and he has

failed to present evidence that a simple corrective measure such as wearing a diaper would not

reasonably control the condition.” (Def.’s Br. at 11-12).

Finally, Defendant asserts that Plaintiff’s “HIV positive status did not substantially limit

one or more major life activities, and thus cannot be the basis for his disability discrimination

claim.” (Def.’s Br. at 12) (citing Worster v. Carlson Wagon Lit Travel, Inc., 353 F.Supp.2d 257,

365-66 (D. Conn. 2005) (HIV positive status did not constitute a disability when the plaintiff did

not plan to have children and did not show that his HIV status affected any other major life

activity).

In response to Defendant’s Motion for Summary Judgment, Plaintiff devotes just one

paragraph to his disability discrimination claims:

DISABILITY DISCRIMINATION

Mr. Williams has numerous ailments that constitute a disability. Mr. Williams is

HIV positive; he also suffers from stress, anxiety, depression and torn rotator cuff

requiring surgery. Mr. Williams still suffers from his shoulder injury and at the

time of his termination he was on restricted work status. Mr. William’s [sic] can’t

get surgery because defendant has terminated his employment and left him with

no medical insurance. Defendant has further disputed any of plaintiff’s medical

bills related to plaintiff’s shoulder and defendant still refuses to pay outstanding

medical bills associated with his shoulder.

(Pl.’s Br. at 7).1

 Notably, Plaintiff did not respond to any of the above arguments regarding his

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alleged disabilities, nor did he present evidence to establish that any of the alleged conditions

substantially limited one or more of Plaintiff’s major life activities. 

Accordingly, the Court concludes that Plaintiff has not met his burden of establishing that

he is disabled under the statute.

2. Has Plaintiff Established That Defendant’s Legitimate, Non-Discriminatory

Reasons For The Challenged Actions Are Pretextual?

Assuming arguendo that Plaintiff could establish a prima facie claim under the

PWDCRA, Defendant has articulated legitimate, non-discriminatory reasons for its challenged

actions. Defendant contends that Plaintiff cannot show that those reasons are a pretext for

discrimination.

a. Reducing Plaintiff’s Hours In January 2008:

With respect to Plaintiff’s claim that Defendant discriminated against him by reducing

his hours in January of 2008, Defendant asserts that it did so because it experienced reduced

sales at that time and because Plaintiff had the lowest seniority and was a part-time employee. 

Indeed, Defendant notes that Plaintiff admitted during his deposition that: 1) Defendant often

reduces employee’s hours in January because it experiences reduced sales after the holidays; 2)

Shifts are scheduled by seniority by Defendant and the schedules of full-time employees take

precedence; 3) Plaintiff had the lowest seniority in the department and was a part-time employee;

4) Plaintiff attended college throughout his employment with Defendant and Defendant

accommodated Plaintiff’s school schedule and scheduled his shifts around his classes; and 5)

Plaintiff’s school schedule for Spring 2008 limited his availability more than his Fall 2007

school schedule. 

In response to this legitimate, non-discriminatory reason for the challenged action, and

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the evidence supporting same, Plaintiff has not offered any evidence to establish that the reason

is a pretext for discrimination.

b. Unfairly Evaluating Plaintiff:

In his complaint, Plaintiff alleged that Defendant discriminated against him, based upon

his disability, by unfairly evaluating him. (Am. Compl. at ¶ 28).

Contrary to the allegations in his complaint, however, Plaintiff admitted at his deposition

that Defendant did not unfairly evaluate him. (Def.’s Stmt. at ¶ 47; Pl.’s Stmt. at ¶ 47). 

c. Terminating Plaintiff:

With respect to his termination, Defendant has offered a legitimate, non-discriminatory

reason for that action. Defendant states that it terminated Plaintiff because, in violation of both

local ordinances and Defendant’s own policies, Plaintiff urinated in public in the parking lot of

Warehouse 390.

In response, Plaintiff has not offered any evidence to establish that Defendant’s stated

reason for his termination is a pretext for discrimination. To the contrary, he admits his conduct

and admits that it violated Costco’s policies and the local ordinances. Plaintiff further admits

that he is not aware of any other employees who publicly urinated on Defendant’s property but

were not terminated and Defendant has presented evidence to establish that it has terminated

other employees for the very same conduct. 

Accordingly, the Court concludes that Defendant is entitled to summary judgment with

respect to Plaintiff’s disability discrimination claims.

B. Disparate Treatment Claims:

Plaintiff’s Amended Complaint contains a count titled “Disparate Treatment,” wherein

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Plaintiff alleges that “the employment policies practiced by the defendant in hiring may appear

neutral on their face but have a substantial adverse impact” on disabled individuals. (Am.

Compl. at ¶ 31). In this count, Plaintiff also alleges that he “was qualified for his position and

was unfairly denied an opportunity to continue in his position due to his disability.” (Am.

Compl. at ¶ 32).

Defendant contends that it is entitled to summary judgment with respect to this count for

several reasons. First, Defendant contends that this count fails because Plaintiff has not

established that he is disabled within the meaning of the PWDCRA. (Def.’s Br. at 15)(citing

Barron v. William Beaumont Hosp., LEXIS 649 (Mich. App. 2001) (affirming summary

judgment for employer with respect to plaintiff’s disparate treatment claim when she was not

disabled). Defendant also contends that the count fails because Plaintiff “clearly admitted at his

deposition that (1) he does not believe Costco discriminated against him with respect to hiring,

(2) he is not aware of any disabled individuals Costco discriminated against during the hiring

process, (2) he does not believe he was discriminated against when Costco failed to hire him for

supervisor and deli positions, and (4) he does not know the qualifications of the individuals who

received other positions for which he applied (and therefore can make no credible claim that

those individuals were less qualified than he was).” (Def.’s Br. at 15)(citing Def.’s Stmt. at ¶¶

24 & 49; Pl.’s Stmt. at ¶¶ 24 & 49; see also Pl.’s Dep., Part I, at 164-65).

Moreover, as stated above, with respect to his termination, Plaintiff admits that he is not

aware of any other employees who publicly urinated on Defendant’s property but were not

terminated and Defendant has presented evidence to establish that it has terminated other

employees for the same conduct.

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In his Response Brief, Plaintiff did not respond to these challenges to his Disparate

Treatment count. In fact, his Brief is silent at to his disparate treatment count with the exception

of the following statement:

Mr. William’s [sic] was also subjected to disparate treatment due to his

complaints of harassment. On or about March 26, 2007, Mr. William’s [sic]

notified Manager John Vosler that Melody McCoy told him that he would never

be considered for promotion because of his ongoing complaints of harassment. 

(Ex. 10 Career Development Opportunity for Interviewed Candidates).

(Pl.’s Resp. Br. at 7). Exhibit 10 to Plaintiff’s Response Brief appears to be a form indicating

that Plaintiff was not selected for a Membership Assistant position in March of 2007, on which

Plaintiff appears to have made some handwritten notations about a statement allegedly made to

him. Notably, however, Plaintiff has not submitted any admissible evidence regarding such

alleged statements, such as an affidavit or deposition testimony.

Based on what has been presented, the Court concludes that summary judgment must be

granted in favor of Defendant with respect to Plaintiff’s disparate treatment count.

C. Retaliation Claims:

Plaintiff claims that Defendant unlawfully retaliated against him for filing retaliation and

workers’ compensation claims. (Def.’s Stmt. at ¶ 50; Pl.’s Stmt. at ¶ 50). 

Plaintiff’s complaint alleges that he filed “both a Retaliation claim and a Workers

Compensation claim while employed against the defendant” and that “[o]n various occasions, the

plaintiff was informed that the defendant did not like the plaintiff filing either claim or working

with restrictions.” (Am. Compl. at ¶¶ 35-36).

During his deposition, however, Plaintiff testified contrary to those allegations. Plaintiff

testified that no one from Defendant ever said that they did not like the fact that he had filed a

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retaliation claim, a charge of discrimination, or a workers compensation claim:

Q. Here’s my question. Did someone tell you, did someone say to you that

Costco didn’t like the fact that you had filed a retaliation claim or that you

had filed a charge of discrimination?

A. No.

Q. Did someone tell you that Costco didn’t like the fact that you had filed a

workers’ comp claim?

A. No.

Q. Were you informed on any occasion that Costco did not like you filing

retaliation claims or charges of discrimination or workers’ comp claims?

A. No.

Q. You were never informed of that, right?

A. No.

Q. Am I right?

A. You’re right.

(Pl.’s Dep., Part I, at 248-49). Plaintiff further testified that, contrary to the allegations in his

complaint, no one at Costco ever told him they did not like him working with job restrictions:

Q. Okay. Has anybody ever told you that Costco didn’t like you collecting

workers’ compensation or working with job restrictions?

A. No.

(Pl.’s Dep., Part I, at 250).

In addition to Plaintiffs testimony cited above, Defendant’s Motion asserts that Plaintiff’s

retaliation claims fail on additional grounds. 

Defendant asserts that Plaintiff cannot establish a prima facie case of retaliation because

there “is no record evidence that McCoy, who made the decision to terminate [Plaintiff], knew

he filed a retaliation charge before she terminated him on March 19, 2008.” (Def.’s Br. at 16)

(citing Mulhall v. Ashcroft, 287 F.3d 543, 551-52 (6th Cir. 2002)(plaintiff failed to establish

prima facie case where plaintiff failed to establish the decision-maker knew of his protected

activity).

Defendant also asserts that Plaintiff cannot establish the requisite causal connection

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between his protected activity and the adverse actions of which he complains. (Def.’s Br. at 16-

17). 

Defendant further asserts that even if Plaintiff could establish a prima facie case of

retaliation, Defendant has asserted a legitimate reason for Plaintiff’s termination and Plaintiff has

offered no evidence from which he can prove pretext. (Def.’s Br. at 17).

Plaintiff’s brief does not respond to these various arguments challenging his retaliation

claims, other than to cite to his Exhibit 10. Again, Exhibit 10 to Plaintiff’s Response Brief

appears to be a form indicating that Plaintiff was not selected for a Membership Assistant

position in March of 2007, on which Plaintiff appears to have made handwritten notations about

a statement allegedly made to him. Notably, Plaintiff has not submitted any admissible evidence

regarding such alleged statements. 

Accordingly, the Court shall grant summary judgment in favor of Defendant with respect

to Plaintiff’s retaliation claims.

D. FMLA Claims:

As explained in Taylor v. Union Institute, 30 Fed. Appx. 443, 452 (6th Cir. 2002), the

FMLA creates prescriptive and proscriptive employee rights: 

The prescriptive rights created by the Act provide “entitlements” to employees

and “set floors for employer conduct.” To prevail on the basis of the Act’s

prescriptive rights, the plaintiff need not show that she was treated worse than

other employees, just that she was denied the Act’s entitlements. Proscriptive

rights, on the other hand, prohibit disparate employer conduct with regard to

employees taking leave.

Id. Thus, “[t]here are two distinct theories for recovery under the FMLA: (1) the ‘entitlement’ or

‘interference’ theory arising from 29 U.S.C. §2615(a)(1); and (2) the ‘retaliation’ or

‘discrimination’ theory arising from 29 U.S.C. §2615(a)(2).” Smith v. Aco, Inc., 368 F.Supp.2d

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721, 731 (E.D. Mich. 2005).

1. FMLA Claims Based Upon Interference Theory:

To prevail on an interference claim, a plaintiff must establish that: (1) he is an “eligible

employee” under 29 U.S.C. § 2611(2); (2) the defendant is an “employer” under 29 U.S.C. §

2611(4); (3) the employee was entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1); (4) the

employee gave the employer notice of his intention to take leave, 29 U.S.C. § 2612(e)(1); and (5)

the employer denied the employee FMLA benefits to which he was entitled. Cavin v. Honda of

America Mfrg., Inc., 346 F.3d 713, 719 (6th Cir. 2003).

Here, Defendant does not dispute that Plaintiff was an eligible employee under § 2611(2),

nor does it dispute that it is an employer as that term is defined in § 2611(4). Defendant

contends that Plaintiff cannot establish an interference claim because, to the extent that

Plaintiff’s complaint alleges that Defendant failed to allow him to take leave, Plaintiff “admitted

at his deposition that Costco never denied his requests for FMLA leave, that he was allowed to

take intermittent leave without difficulty, and that he was allowed to return to his position after

taking such leave.” (Def.’s Br. at 20). The Court agrees. 

Plaintiff’s Amended Complaint alleges that Defendant violated the FMLA by, among

other things, “failing to grant plaintiff time off,” and failing to “restore Plaintiff to his previous

position,” (Am. Compl. at ¶ 60). In addition, Plaintiff’s Response Brief asserts that Defendant

denied Plaintiff “intermittent FMLA leave.” (Pl.’s Response Br. at 6). During his June 23, 2009

deposition, however, Plaintiff testified that:

• No one ever prevented him from requesting FMLA leave or filling out a leave request. 

(Pl.’s Dep. at 72);

• Plaintiff was never denied FMLA leave by Defendant. (Pl.’s Dep. at 72);

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Citing Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001),

Plaintiff’s brief asserts that the McDonnell Douglas approach does not apply to his claims. In

that case, the Ninth Circuit held that the McDonnell Douglas approach did not apply to the

plaintiff’s FMLA claims in that case because there was “direct, undisputed evidence” that the

defendant employer considered the plaintiff’s FMLA absences as a negative factor in the

decision to terminate her. Here, however, Plaintiff has not presented any such evidence.

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• When Plaintiff requested intermittent FMLA leave, Defendant granted that request. 

(Pl.’s Dep. at 79); and

• Plaintiff, in fact, took intermittent FMLA leave and testified that on occasions when he

felt too weak or fatigued to come to work, he took days off. Plaintiff allowed him to do

so and brought him back to work. (Pl.’s Dep. at 79). 

Given Plaintiff’s testimony, the Court concludes that Plaintiff cannot proceed with an FMLA

claim based upon an interference theory.

2. FMLA Claims Based Upon Retaliation or Discrimination Theory:

“An FMLA retaliation claim based solely upon circumstantial evidence of unlawful

conduct is evaluated according to the tripartite burden-shifting framework set forth in McDonnell

Douglass.”2

 Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008). “A plaintiff

must typically make a prima facie showing that: (1) he engaged in a statutorily protected

activity; (2) he suffered an adverse employment action; and (3) a causal connection exists

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

In his Response Brief, Plaintiff asserts that Defendant retaliated against him by: 1)

reducing Plaintiff’s hours “after filing his complaints of discrimination.” (Pl.’s Response Br. at

6). Defendant also construes Plaintiff as asserting that Defendant terminated him in retaliation

for having taken FMLA leave.

With respect to Plaintiff’s claim that Defendant retaliated against him by reducing his

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hours in January of 2008, Defendant asserts that it did so because it experienced reduced sales at

that time and because Plaintiff had the lowest seniority and was a part-time employee. Again,

Defendant notes that Plaintiff admitted during his deposition that: 1) Defendant often reduces

employee’s hours in January because it experiences reduced sales after the holidays; 2) Shifts are

scheduled by seniority by Defendant and the schedules of full-time employees take precedence;

3) Plaintiff had the lowest seniority in the department and was a part-time employee; 4) Plaintiff

attended college throughout his employment with Defendant and Defendant accommodated

Plaintiff’s school schedule and scheduled his shifts around his classes; 5) Plaintiff’s school

schedule for Spring 2008 limited his availability more than his Fall 2007 school schedule. In

response to this legitimate, non-discriminatory reason for the challenged action, and the evidence

supporting same, Plaintiff has not offered any evidence to establish that the reason is a pretext

for discrimination.

With respect to a retaliation claim based upon his termination, Defendant asserts that

Plaintiff cannot establish a prima facie case because he cannot establish a causal connection

between his termination and his protected activity. Defendant further asserts that Plaintiff has

failed to present any evidence to establish that its legitimate, non-discriminatory reason is a

pretext for discrimination.

The Court agrees that Defendant is entitled to summary judgment with respect to

Plaintiff’s FMLA claims based on a retaliation theory.

3. FMLA Claims Based Upon “Failure To Accommodate” Theory:

Plaintiff appears to argue that Defendant violated the FMLA by denying “the plaintiff

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Plaintiff has not asserted any claims under the ADA and he has not asserted a failure to

accommodate claim under the PWDCRA.

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reasonable accommodations” in that Defendant: 1) did not follow Dr. Little’s restrictions

regarding working in inclement weather; and 2) “failed to place plaintiff in an in-store position

with access to a bathroom.” (Pl.’s Response Br. at 6). Plaintiff has cited no authority

whatsoever to support his assertion that he can pursue a claim under the FMLA under a “failure

to accommodate” theory.3

Defendant asserts that this claim fails for at least two reasons. “First, the inclement

weather restriction did not apply to Williams’ position in Member Services; rather, it applied

only to the Cart Crew duties Williams had in 2007.” (Def.’s Response Br. at 19) (citing Def.’s

Stmt. at ¶ 17; Pl.’s Stmt. at ¶ 17)). “Second, the FMLA is a leave statute, not an accommodation

statute, and does not require an employer to accommodate an employee’s medical restrictions. 

See Hoge v. Honda of Am. Mfg., 382 F.3d 238, 249-50 (6th Cir. 2004)(‘[t]he leave provisions of

[FMLA] are wholly distinct from the reasonable accommodation obligations of employers

covered under the [ADA];’ Alifano v. Merck & Co., 175 F.Supp.2d 792, 795 (E.D. Penn. 2001)

(‘Unlike the [ADA], the FMLA does not require an employer to reasonably accommodate an

employee’s serious health condition.’).” (Def.’s Response Br. at 19-20).

The Court agrees that Plaintiff cannot pursue a claim under the FMLA based upon a

“failure to accommodate” theory. Although Plaintiff could assert such a claim under the

PWDCRA or the ADA, he has not asserted any such claim here. Moreover, even if he had, there

would still be fundamental flaws with a failure to accommodate claim asserted under the facts of

this case.

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“Like the ADA, the PWDRA prohibits an employer from discharging an employee

because of [his] disability, MICH. COMP. LAWS § 37.1201(d)(1)(b), and imposes a duty on the

employer to accommodate an individual’s disability absent undue hardship on the employer. Id.

§ 37.1201(1)(g) (prohibiting discrimination ‘when adaptive devices or aids may be utilized

thereby enabling that individual to perform the specific requirements of the job.’” Salim v.

MGM Grand Detroit, L.L.C., 106 Fed.Appx. 454, 458 (6th Cir. 2004).

Here, Plaintiff testified that his urination condition causes him to urinate on himself

without warning, before he can do anything about it. (Def.’s Stmt. at ¶ 37; Pl.’s Stmt. at ¶ 37). 

Notably, Plaintiff admits there is nothing Defendant could have done to accommodate his

condition. (Def.’s Stmt. at ¶ 34; Pl.’s Stmt. at ¶ 34). 

Accordingly, the Court concludes that Defendant is entitled to summary judgment with

respect to Plaintiff’s FMLA claims based on a failure to accommodate theory.

CONCLUSION & ORDER

IT IS ORDERED that Defendant’s Motion to Strike Plaintiff’s Supplemental Index of

Exhibits (Docket Entry No. 28) is DENIED.

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Docket 

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Entry No. 22) is GRANTED and this action is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED. 

s/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: October 15, 2009

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

October 15, 2009, by electronic and/or ordinary mail.

s/Jennifer Hernandez 

Case Manager

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